European Court of Human Rights

DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON

As explained in the judgment of the majority of the Court, the traffic offence committed by the applicant Mr. Öztürk would have been treated as a criminal offence in the Federal Republic of Germany before the enactment of the Regulatory Offences Act ("the 1968/1975 Act") which "decriminalised" this as well as many other petty offences.  I am of the opinion that, this being so, it is necessary to examine the extent of the changes introduced by the 1968/1975 Act.  Should these changes prove to be limited, that would tend to support the conclusion that the applicant was entitled to the protection of the right set out in Article 6 § 3 (e) (art. 6-3-e) of the Convention.

The fine (Geldbusse) imposed on the applicant was decided upon by an administrative authority (Landratsamt).  This would not, it seems, have been possible under the former system.  The applicant lodged a kind of appeal or objection (Einspruch).  This resulted in his case being referred to the District Court (Amtsgericht), the case-file having previously been forwarded to the public prosecutor's office which thereupon assumed the function of prosecuting authority. When the applicant appeared before the District Court, he was assisted by an interpreter.

As far as I can see, both of the institutions that dealt with the applicant's case, namely the public prosecutor's office and the District Court, were the same institutions as would have been competent under the former system, when the case would have been classified as criminal.  The procedural rules applied by the District Court were in substance the same as those in force under the old system, although formally speaking they were the rules of criminal procedure applied by analogy.

The foregoing considerations indicate, in my opinion, that the treatment of petty offences under the 1968/1975 Act is not a completely new system of procedure but rather one that is closely related to the former system for criminal cases.  This fact in itself constitutes an argument of some weight in favour of the applicability of Article 6 § 3 (e) (art. 6-3-e) of the Convention in the present case and hence of a violation of that provision.  Nevertheless, it has to be weighed against other arguments.  As to such other arguments, I refer to the dissenting opinion of Judge Bernhardt with which I agree in its essentials.  My overall assessment of the relevant arguments leads me to the conclusion that Article 6 § 3 (e) (art. 6-3-e) of the Convention is not applicable in this case and that, accordingly, there was no violation.  This view is reflected in my voting.

DISSENTING OPINION OF JUDGE BINDSCHEDLER-ROBERT

(Translation)

In the present case, the Court has rightly recognised that the principles identified in the Engel case (Series A no. 22) regarding disciplinary offences were also applicable to "regulatory" offences. It is indeed for the Court "to satisfy itself that the disciplinary" - in this instance: the "regulatory" - "does not improperly encroach upon the criminal"; in other words, to satisfy itself that the State's classification of the offence as "regulatory" instead of criminal is not inconsistent with Article 6 (art. 6).

I cannot, on the other hand, agree with the Court's analysis of the nature of the offence: the elements it takes into consideration - "the general character of the rule" and "the purpose of the penalty, being both deterrent and punitive" - are too general in themselves.  In this way, the Court denies itself the possibility of accepting the very concept of decriminalisation.  The Court underestimates, moreover, the real significance of the process of decriminalisation brought about by German law when it in fact, if not in theory, adopts the position that what is involved is a mere change of legal classification, hence a mere change of labels.  An examination of the various provisions of the relevant German statutes reveals a radical change in the conditions governing prosecution and sentencing with regard to Ordnungswidrigkeiten; the penalties in particular - for this aspect is bound up with that of the nature of the offence - may be seen to be not only lighter than criminal-law penalties but also different in character.

This leads me to the conclusion that there is nothing improper in designating Ordnungswidrigkeiten as not falling within the criminal sphere and that, consequently, Article 6 (art. 6) is not applicable. Furthermore, I find it reasonable to consider that the highly detailed guarantees afforded by Article 6 (art. 6) were not designed to be applied to petty offences which do not involve the moral condemnation attaching to criminal offences: this is all the more so as in the present circumstances it is clearly in the interests of both the individual himself and the general working of the machinery of justice that such offences should be decriminalised or depenalised.

DISSENTING OPINION OF JUDGE LIESCH

(Translation)

1.      "If the Contracting States were able at their discretion to classify an offence as disciplinary instead of criminal, or to prosecute the author of a 'mixed' offence on the disciplinary rather than on the criminal plane, the operation of the fundamental clauses of Articles 6 and 7 (art. 6, art. 7) would be subordinated to their sovereign will.  A latitude extending thus far might lead to results incompatible with the purpose and object of the Convention.  The Court therefore has jurisdiction, under Article 6 (art. 6), to satisfy itself that the disciplinary does not improperly encroach upon the criminal" (Engel judgment, Series A no. 22, page 34, § 81).

On the basis of this principle establishing the autonomy of the concept of "criminal", the Court laid down criteria for circumscribing the concept of "criminal", namely the national legal system, the nature of the offence and the degree of severity of the penalty.

2.      But, in addition to these factors, it seems necessary to have regard to the question of the interests of society or the need for deterrence.

3.      An offence may be defined as an act or omission provided for under the law and punished by it as being contrary to justice and at the same time to the benefit of society.

4.      As the injustice or immorality of an act and the interests of society in punishing it are two essential conditions for designating it a criminal offence, it is understandable that the legislature should not prescribe penalties for certain highly immoral acts owing to the lack of any benefit for society in punishing them or that, conversely, prompted by the interests of society, it should penalise certain acts of doubtful immorality.

5.      Thus incest, adultery by the husband, suicide or at least attempted suicide, blasphemy and vice (prostitution) are not usually covered by the criminal law.  Conversely, certain acts are punished by the criminal law even though they are deemed only slightly immoral or not even immoral at all.

6.      By the Act of 2 January 1975 on Ordnungswidrigkeiten, the German legislature, being concerned to humanise the criminal law, deliberately removed certain acts from its ambit so that they should no longer be criminal offences (see sections 21, 40, 41 and 81 of the Act).  This was because the plethora of criminal penalties - in the narrow sense of the term - was in danger of making this coercive measure entirely ineffective.

7.      In the guise, it is true, of a "criminal" procedure accompanied by suitable safeguards against arbitrariness, the "regulatory offence" (Ordnungswidrigkeit) is, in various fundamental respects, no longer covered by the criminal law.

8.      Thus the penalty known as Geldbusse is no longer entered in criminal records; its effect is no longer stigmatic, and it gives rise to no social rejection.

No provision is made for the aggravation of ordinary-law penalties in cases of recidivism.

Imprisonment in the case of failure to pay a "regulatory" fine is not carried out according to the rules of ordinary law.  It is not the mandatory substitute for an unpaid fine.  Far from having the character of a penalty in the criminal sense, that is to say a measure punishing a criminal act, it is merely coercive without any reprobatory or humiliating effect.

The right to prosecute does not lie with the public prosecutor's office but with the administration acting in accordance with the principle of discretionary prosecution, a principle that does not normally apply under German criminal law (section 47 of the Act).

9.      The seriousness of the "offence" is insignificant; the penalty (Gelbusse), unaccompanied by imprisonment and comparable to a mere admonition, still falls short of the penalties prescribed for petty offences under the legislation of some Contracting States.  In short, the penalty is not necessary as a means of protecting a system of fundamental values in democratic society.

It therefore seems disproportionate and unnecessary, for the purposes of the Convention, to invoke the concept of "criminal law" in relation to a calling to order which is not regarded by the individual as a measure affecting his freedom, conscience or identity in any of its fundamental attributes.

10.     Having regard to the nature of social reactions, the German legislature has thus clearly demarcated the limits to punishment by decriminalising these anti-social or merely deviant types of behaviour.

Far from simply acting according to its own will, the German legislature has not disregarded the margin of appreciation and the degree of necessity attaching to the restrictions which are provided for in principle under the Convention.

Construed in a restrictive sense, Ordnungswidrigkeiten may thus be regarded as having been placed on the fringe of, or even completely excluded from, the scope of Article 6 (art. 6) of the Convention.

11.     Despite the significant peculiarities of this legal institution, the Court's judgment seems to reflect a desire to include the "offence" under the heading of "criminal offence" at all costs, with the sole concern of bringing the Convention's procedural guarantees into operation.

The fact that the respondent State grants to "everyone charged with a criminal offence" the right to a fair hearing by a tribunal should not, however, be regarded as indicating that Ordnungswidrigkeiten fall within the ambit of the criminal law.

The juridical characteristics of the criminal law do not derive from the possibility of appealing to a court.

12.     An individual right, even one based on a legal rule, is not necessarily an ingredient of fundamental freedoms essential to man for leading the best life possible.

Accordingly, the system for protecting fundamental freedoms is justifiable only if an unequal relationship arises between the holder of a fundamental freedom and the public authorities which necessitates, in the light of sociological factors, the safeguard afforded by the Convention.  In the present case, there is no such imbalance.

13.     One final remark.  In some member States criminal sentences are sometimes replaced by an alternative measure; it may be asked then whether, in relation to the present judgment, that type of "penalty" retains (even so) its punitive character (§ 53 of the judgment) and may still be included in the concept of "criminal offence".

It is considered by some, for instance, that community work is redemption of part of the offender's debt to society rather than a penalty, as such work is regarded as an act of solidarity that is useful to others and quite different from any conventional criminal-law penalty.

In that case, to borrow the Court's arguments, "the rule of law infringed ... [undergoes] no change of content ... it prescribes conduct of a certain kind and makes the resultant requirement subject to a sanction that is punitive" (§ 53).  Article 6 (art. 6) of the Convention should therefore be complied with.

However, these alternative measures often presuppose a decision not to institute formal criminal or judicial proceedings.  Even though the offender may be compelled to make amends, none of these alternatives, in general, involves any criminal sentence.

This reasoning is all the more valid when the national court, as may be done in certain member States, defers the passing of sentence.  One of the criteria envisaged, the penalty, is lacking.

14.     What should be the solution when a member State resorts to a form of procedure which results in a pecuniary penalty being imposed on an offender outside the confines of a court?

No doubt such procedures, just like the analogous one of decriminalising offences so as to rid them of the stigma of a sentence or dejudicalising certain parts of the criminal law, belong to one and the same criminal policy whose aim is precisely to apply types of treatment that fall outside the criminal law and hence go beyond the scope of the Convention.

The decriminalisation of offences therefore reflects, in my view, a humanising trend in the criminal law which, while preserving the Convention's substance, restores it to its original context, without however evading the supervision of the Court (Engel judgment).

15.     For these various reasons, I consider that the respondent State, in resorting to the "regulatory" fines procedure, did not violate the provisions of Article 6 (art. 6) of the Convention.

DISSENTING OPINION OF JUDGE MATSCHER

(Translation)

A.      Autonomous interpretation

1.      I do not believe that the authors of the Convention foresaw, when they drafted Article 6 (art. 6), the problems of interpretation to which this provision would give rise and the developments which it would undergo in the decades ahead.  Moreover, when they spoke of "the determination of ... civil rights and obligations or of any criminal charge", they seem to have been thinking only of matters which, on the understanding prevailing at the time, came within the ambit of "civil" - or private - law and "criminal" law, and cognisance of which was in principle conferred on the ordinary courts.  In fact, the procedural guarantees included in Article 6 (art. 6) of the Convention are typically those applying in cases which, by reason of their importance for the individual and for society, come before the courts.

2.      After an initial period of hesitation, the Convention institutions rightly went beyond the formal concepts of "civil rights" and "criminal charges", opting instead for a more substantive approach.  At the same time, they increasingly inclined towards autonomous interpretation of these concepts.  It goes without saying that autonomous interpretation is the method best suited to multilateral conventions, and particularly rule-making instruments, such as the European Convention on Human Rights.  Nonetheless, reliance on this method of interpretation raises problems of legal hermeneutics which are far more complex than one might at first suppose.  These problems above all concern the "value" which should be attributed to the law of the State in question and to the legal systems of the other Contracting Parties in the endeavour to arrive - having regard to the object and purpose of the Convention - at a common understanding underlying the concepts contained in the text.

Thus, to take one example, the present judgment seems to base its interpretation of the concept of "criminal offence" (in which it seeks to include offences which are "regulatory" in the law of the Federal Republic of Germany) on, inter alia, the results of an analysis of the respective laws of the Contracting States (see paragraph 50 in fine). However, a careful examination of comparative law data would show that there does not nowadays exist a "common denominator" in the sense contemplated by the judgment: in the law of the Federal Republic of Germany - the State concerned - "regulatory" offences (Ordnungswidrigkeiten) clearly lie outside the realm of criminal law; the same is true of Austrian law (Verwaltungsstraftaten); and French law, Netherlands law (and possibly the legal systems of other European countries) are preparing to move in the same direction.  In my view, autonomous interpretation would call for comparative studies of a far more detailed nature than those carried out so far by the Convention institutions (I referred briefly to the methodological problem of autonomous interpretation in my separate opinion on the König judgment, Series A no. 22, p. 46; see also Schlosser in Praxis des Internationalen Privat- und Verfahrensrechts 1981, p. 154 f.).

I also wonder whether the purpose and object of the Convention, on which autonomous interpretation is founded, require that the procedural guarantee enshrined in Article 6 § 3 (e) (art. 6-3-e) be respected in cases like the present one (the other guarantees of Article 6 (art. 6) were not at issue), this being the only condition on which this case could legitimately be described as "criminal" in terms of "the object and purpose of the Convention".  Here again, the judgment fails to provide convincing arguments in support of its conclusions.

B.      The concept of criminal charge and "regulatory" offences

1.      Basing itself on the Engel judgment, the present judgment states three criteria for the determination whether an offence is covered by criminal law: the legal system of the State concerned, the nature of the offence and the severity of the penalty which it carries.  I approve this approach but cannot, to my regret, entirely agree with the Court's assessment of these criteria.

There has been no dispute before the Convention institutions concerning application of the first criterion; I therefore have nothing to add on this point.

My dissent mainly centres on the way in which the judgment assesses the second criterion and on the fact that the third criterion has not been considered (an omission which concords with the general structure of the judgment).

2.      It is always an extremely delicate matter to make any evaluation of a legal institution on the basis of its "nature" and "the ordinary meaning of the terms" used to describe it (notwithstanding that the latter criterion is referred to in Article 31 of the Vienna Convention on the Law of Treaties as one of the primary indications for ascertaining the meaning of an ambiguous expression in an international treaty).

I thus have certain doubts on the validity of some of the arguments which the present judgment uses (see paragraph 53) in trying to explain the criminal character of an offence (the deterrent effect of the penalty which it carries), of a sanction (its punitive character) and of a rule of law (it prescribes conduct of a certain kind and imposes a punitive sanction for non-compliance; in addition, it is directed towards the public at large).  However, all of these criteria apply equally well to offences against the proper conduct of legal hearings and to the sanctions which they carry under the rules of procedure.  It would nonetheless seem clear that such offences are not criminal within the meaning of Article 6 (art. 6) of the Convention (see also Europäische Grundrechte-Zeitschrift 1982, p. 159).

These arguments are thus, without more, insufficient to justify the qualification of an offence, of a sanction or of a rule of law as criminal within the meaning of Article 6 (art. 6).

Even if it is necessary, for purposes of autonomous qualification of a concept in an international convention, to depart from the formal qualification given to an institution in the legislation of a given State and to analyse its real nature, this process must never go too far - otherwise there is a danger of arriving at an abstract qualification which may be philosophically valid, but which has no basis in law.  In point of fact, the "real nature" of a legal institution is conditioned above all by the legal effects to which it gives rise under the legislation concerned.

However, it is in this very process of analysing the true nature of "regulatory" offences that the judgment fails to take sufficient account of the relevant legislation - in this instance, German legislation - and, in so far as it does take any account, also fails to appreciate its scope correctly.

3.      The word "decriminalisation" or "depenalisation" can have several meanings.  Here, we are primarily concerned only with the removal of an offence from the criminal sphere and its reclassification in another area of law, in this case administrative law.  In this sense, decriminalisation corresponds to a very widespread trend in European legal systems and one which the Council of Europe is itself encouraging.  This is not the place to describe this phenomenon fully, nor is such explanation needed to justify this dissenting opinion.  I shall merely point out that decriminalisation is something very different from a mere switch of labels.  Social changes and new attitudes, as well as technical and economic circumstances, are leading States to reassess the elements which go to make up criminal offences; thus certain comparatively minor offences, which are nowadays very common, have been removed from the criminal sphere and classified as "regulatory" offences.  This has important consequences which oblige us, in my view, to conclude that the nature of the offence itself has changed.  The moral verdict is no longer the same, in other words, a "regulatory" offence no longer carries the blame which attaches to a crime; the court's decision is not entered in a criminal record; nor do "regulatory" offences carry a more severe penalty in the event of recidivism, this being another feature of criminal law; investigatory measures are also limited - there may, for example, be none of those restrictions on the person's liberty which apply in criminal proceedings (neither police custody, nor detention on remand, nor the interception of communications may be ordered). The sanctions, too, are fundamentally different.  There is no imprisonment.  Chief among the possible sanctions are a warning (Verwarnung), an admonitory fine (Verwarnungsgeld) and an administrative fine (Geldbusse).  The last-named sanction also differs from the criminal fine (Geldstrafe) in so far as the person concerned, if he can prove his inability to pay, is neither obliged to do so nor imprisoned instead.  In the case of road traffic offences, a driving licence may also be suspended or withdrawn, a measure which can, but does not necessarily, constitute a sanction.  A further aspect should not be forgotten: while the limitation period for criminal offences ranges from 3 years to 30, it never exceeds 3 years for "regulatory" offences; in practice, it ranges from 6 months to 3 years; in the present case, which concerned a road traffic offence, it was 6 months (essentially along the same lines, see Vogler's well-documented study in Europäische Grundrechte-Zeitschrift 1979, p. 645 ff.).

It cannot be claimed that the above comments refer only to "quantitative" differences in the legal effects of criminal and "regulatory" offences.  It is an accepted fact that "quantity" can become "quality", and this is particularly true in the legal sphere.

To sum up: Differences in the conceptions which underlie criminal and "regulatory" offences in the law of the Federal Republic of Germany and, above all, differences in their legal effects (of substance and of procedure) affect their very nature - a point which the judgment does not appear to have properly grasped when it says that the differences in question relate mainly to procedural matters and the range of sanctions (see paragraph 53).  If "regulatory" offences follow different procedures and also carry different penalties, this is precisely because their nature differs from that of criminal offences.

The foregoing analysis is by no means invalidated by the fact that there are still certain links between "regulatory" and criminal offences.  These links, which are described at length in the judgment, do not affect essentials; in fact, they are chiefly concerned with procedure - in other words, they are concerned with essentially formal aspects which, as the Court has repeatedly ruled, should not determine the way a legal institution's "nature" is to be qualified.  Moreover, the subsidiary application by analogy of certain procedural rules (in this instance, as the judgment emphasises, the application of the rules of criminal procedure to "regulatory" offences) is not sufficient in itself to justify conclusions as to the legal nature of a given issue; many examples from comparative law could be cited in support of this.  These links are therefore not such as to erase the basic differences which exist in German law between "regulatory" and criminal offences.  It follows that, by reason of their nature, "regulatory" offences in general and traffic offences in particular - the latter being the only ones at issue in the present case - should not be regarded as criminal within the meaning of the Convention.

4.      The different conclusion which the Court has reached in the judgment regarding the nature of "regulatory" offences makes the third criterion - the severity of the penalties which they carry - irrelevant.  It should, however, be stressed that here too there are major differences between criminal and administrative sanctions (see the preceding paragraph).  In the present case of a minor driving offence, the applicant faced an administrative fine of - in theory - up to DM 1,000.  In fact, he was fined DM 60 and it is highly unlikely that, in deciding his objection, the District Court could have fined him more than DM 200.  All of this is well below the level of severity which rightly led the Court to conclude that certain disciplinary sanctions imposed in the Engel case had been criminal in character.

C.      Conclusions

1.      The foregoing considerations have led me to conclude that road traffic offences in German law - the only offences sub judice in the present case - remain outside the sphere of criminal charges within the meaning of Article 6 § 1 (art. 6-1) of the Convention.

In my view, there are also no grounds of legal policy which might, through a teleological interpretation of the said provision, militate in favour of a different conclusion in the present case.  In fact, I do not believe that the general and abstract provision of free interpretation in the case of an administrative offence of minimal importance to the individual, and regardless of his resources, is a right worthy of protection.  Moreover, in making Article 6 (art. 6) applicable to cases of this kind one is also necessarily implying the right to a "judgment ... pronounced publicly".  I believe that proper consideration of all the consequences of applying Article 6 (art. 6) to this case should make it plain that the judgment is taking us a long way from what are normally regarded as "human rights and fundamental freedoms", the only ones which the Convention institutions have the duty to safeguard.

2.      A different reasoning would seem, however, to underlie the present judgment.  Firstly, there is a fear that, by transferring certain offences, even serious offences, from the criminal to the administrative sphere, States might evade the procedural guarantees which the Convention provides for in criminal cases; secondly, there is a concern that certain basic procedural guarantees may also be needed for minor "regulatory" offences.

Although I appreciate the thinking behind this reasoning, I cannot associate myself with it.  This fear, apart from being more fanciful than real - in decriminalising certain offences, the States concerned are pursuing aims wholly in accord with the Convention -, is also unfounded.  Moreover, the case-law inaugurated by the Engel judgment gives the Convention institutions a sufficiently wide power of control in appropriate instances.

The concern to which I referred has more weight, but it is rooted in the incomplete and defective nature of the procedural guarantees included in the Convention.  The situation here is similar to that which prevails in other areas (administrative-civil cases, disciplinary cases), where the individual undoubtedly needs certain procedural guarantees, but not necessarily all those for which Article 6 (art. 6) provides in civil and criminal cases.

As I have often pointed out, it is up to the States of Europe to provide - through a Protocol to the Convention - adequate procedural guarantees for these cases too, which are also becoming increasingly important in the world of today.  Excessively broad interpretation of the concepts of "criminal" and "civil" for the purpose of extending the guarantees included in Article 6 (art. 6) to cases to which they are not intended to apply does not strike me as an appropriate solution.

PARTLY DISSENTING OPINION OF JUDGE PINHEIRO FARINHA

(Translation)

1.      I am of the view that the State has the power to transfer certain acts from the criminal sphere to the administrative sphere. It is nevertheless necessary that in the event of dispute by the person concerned, the case should go before a court.

2.      Notwithstanding this, in the instant case Mr. Öztürk withdrew his objection and submitted to the "regulatory" fine (see paragraph 13 of the judgment).

The abandonment of the objection lodged and the submission to the "regulatory" fine remove the matter from the ambit of Article 6 (art. 6) and for this reason I reach the conclusion that there was no breach of Article 6 § 3 (e) (art. 6-3-e) of the Convention.

DISSENTING .OPINION OF JUDGE BERNHARDT

The present case, although of minor importance in itself, raises basic questions on the correct interpretation and application of the European Convention on Human Rights.  Since I do not share the opinion of the majority of the Court expressed in the present judgment, I feel obliged to explain my views in this dissenting opinion.

It is now settled case-law of the Court that three criteria are or can be of importance if the question arises as to whether a person is "charged with a criminal offence" in the sense of Article 6 § 3 (art. 6-3) of the Convention: the qualification of an act or omission in the legal system of the State concerned, "the nature of the offence" and "the nature and degree of severity of the penalty" (cf. § 50 of the present judgment following the reasoning in the Engel case).  I agree with this starting point but I come to different conclusions when applying and evaluating these criteria.

(1)  It is beyond dispute that the Regulatory Offences Act of 1968/1975 effected a decriminalisation of various petty offences by taking them out of the criminal code and by creating a system under which they were made punishable by fines imposed by administrative authorities.  The administrative decision is final only if the person concerned does not apply to a court; the absolute exclusion of a court decision would be incompatible with the German constitutional system.

Decriminalisation of this kind involves basic assumptions on the proper field of criminal law as well as a good number of practical aspects.  One of the basic aims is the improvement of the position of the individual by the elimination of any moral judgment and the drawbacks customarily connected with criminal proceedings.  At the same time the criminal courts are no longer overburdened with the handling of a great number - now millions - of minor offences; this is in the interest of the State and society and the effectiveness of the judicial system.

The practical implications and consequences of the new system are described in the present judgment; they need not be repeated here in detail.  It is the administrative authority which imposes the fine; only if the offender lodges an appeal, do the courts give the final decision; the courts can cancel the fine, they can impose a lower or - under certain conditions - a higher fine.  It is the ordinary criminal court that has jurisdiction (if the offender lodges an appeal) in these petty-offence cases, and they apply by analogy a great part of the Code of Criminal Procedure; this has obviously been provided for practical reasons since no other courts are more competent for judging on the proper sanctions for contraventions.  In genuine criminal cases, these same courts can impose sentences of imprisonment, whereas they cannot do this under the Regulatory Offences Act; coercive imprisonment is only possible if the offender neither pays the fine nor establishes his insolvency.

It has never been contested that this system really intends to differentiate between criminal matters and charges, on the one side, and administrative contraventions, on the other.  The German system is in conformity with modern trends in a good number of countries; decriminalisation in its various aspects is also one of the topics of discussion in the Council of Europe.

(2)  I agree with the present judgment and the settled case-law of this Court that the qualification of certain notions and procedures under national law cannot be the final word.  The autonomy of the Convention and its provisions exclude any unilateral qualification which cannot be reviewed.  But this does not mean that the national qualification is without any importance.  We are here concerned with the difficult and precarious task of drawing the borderline between the qualification by the national legal system and the national margin of appreciation, on the one hand, and the autonomy of the Convention provisions, on the other.

In this connection, it must first be said that the fear that "decriminalisation" in the sense here under discussion could lead to the inapplicability of Article 6 (art. 6) of the Convention in nearly all cases now falling under this provision, is completely unfounded. The sole question is whether certain minor offences can be removed from the proper field of criminal law and criminal charges, and this only subject to the ultimate supervision of the Convention organs.

Also, it cannot be decisive that certain acts or omissions have previously been considered "criminal", especially at the time when the Convention was drafted and came into force.  For good reasons the Court has in many cases accepted and practised an evolutive interpretation of the Convention, taking into account developments in society and in public opinion.  In the Dudgeon case, the Court held that certain sexual behaviour, formerly punishable under the criminal law in all States, should no longer be treated as criminal and punishable in a given social environment.  Social developments and evolving considerations of public policy must be taken into account also in other fields of similar relevance.  The Court and the Commission must take due notice of such developments.

Finally, nor can it be decisive that certain acts or omissions are still considered in some States to be criminal, in others not.  It is the essence of the "margin of appreciation" and the limited right of unilateral qualification possessed by the States that there exist differences between them which are relevant also for the application of the Convention.

Thus, the real problem in my opinion is whether the "decriminalisation" here under consideration is a legitimate exercise of national determination and whether it is in conformity with the object and purpose of Article 6 (art. 6) of the Convention.  My answer is in the affirmative.  The reasons for removing some minor offences from the field of criminal law, and for providing special sanctions and procedures for them, can hardly be considered unfounded or disguised.  And can it really be said that the object and purpose of Article 6 (art. 6) of the Convention require the same guarantees (including the free assistance of an interpreter) for small traffic offences and similar petty offences, guarantees which are absolutely necessary in genuine criminal cases?  I do not think so.

For these reasons, "the nature of the offence" here in question - the second criterion for the existence of a criminal charge - does not disqualify or supersede the national determination, and it does not justify the conclusion that Article 6 § 3 (e) (art. 6-3-e) of the Convention is applicable and violated.

(3)  There can be no doubt that "the degree of severity of the penalty" was minimal in the present case, and it does not detract from the foregoing conclusions.