AS TO THE ADMISSIBILITY OF
by Ramis DZANKOVIC
The European Court of Human Rights (Fifth Section), sitting on 8 December 2009 as a Chamber composed of:
Peer Lorenzen, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 2 February 2009,
Having deliberated, decides as follows:
The applicant, Mr Ramis Dzankovic, is a Macedonian national who was born in 1982 and is currently detained in Essen. He was represented before the Court by Mr U. Busch, a lawyer practising in Ratingen.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 4 April 2008 the Cologne Public Prosecutor’s Office opened preliminary investigations against the applicant suspected of intentional homicide (Totschlag) and murder (Mord). At that time the applicant had already been held in pre-trial detention in Essen on other grounds.
On 21 April 2008 the Cologne District Court issued a search warrant in respect of the applicant’s person, vehicle and premises. The Cologne Regional Court dismissed the applicant’s appeal against that warrant.
In the course of the investigation rogatory letters (Rechtshilfeersuchen) and a request for the applicant’s questioning were lodged. The Essen Regional Court decided that the detained applicant could be handed over for questioning by the investigating authorities.
On 6 August 2008 Mr. B., the applicant’s lawyer, appointed himself counsel chosen by the applicant (Wahlverteidiger) and requested that the proceedings be discontinued. Mr. B. lodged an appeal against the Essen Regional Court’s decision and consulted the case files. He then informed the Public Prosecutor that the applicant would refuse to give evidence and the Public Prosecutor abstained from questioning.
On 11 September 2008 Mr. B. lodged a request to be appointed as the applicant’s official defence counsel (Pflichtverteidiger). He relied on section 140 § (1) no. 5 and § (2) of the Code of Criminal Procedure and held that there was a legal obligation to appoint an official defence counsel in the applicant’s case and that the Public Prosecutor was obliged to make the corresponding request with the competent court.
On 19 November 2008 the Cologne Public Prosecutor’s Office informed the applicant’s representative that it did not intend to request that he be appointed official defence counsel during the preliminary investigation proceedings. It underlined that he had already been appointed by the applicant as his defence counsel. There were no grounds at this stage requiring him to be appointed officially.
On 2 January 2009 the Cologne General Public Prosecutor dismissed the applicant’s representative’s complaint against this decision, holding that the fact that legal representation was compulsory during later trial proceedings did not entail an obligation to appoint an official defence counsel for the whole preliminary investigation nor for certain investigation measures. Moreover, the Public Prosecution benefitted from a certain margin of appreciation when appointing defence counsel. The appointment of defence counsel during preliminary investigations was necessary only if there were concrete grounds requiring legal assistance at an early stage, which was not the case at present.
On 22 January 2009 the Federal Constitutional Court refused to admit his constitutional complaint for adjudication. It held that it was inadmissible with regard to the principle of subsidiarity. The alleged violation of constitutional law by the Public Prosecutor’s refusal to officially appoint defence counsel could still be challenged in the main proceedings, notably by virtue of an appeal on points of law, without the applicant incurring any major disadvantages.
B. Relevant domestic law
The relevant provisions of the Code of Criminal Procedure read as follows:
(4) If the accused does not yet have defence counsel, he shall be assigned defence counsel for the duration of his pre-trial detention, if its execution has lasted for at least three months and the public prosecutor’s office or the accused or his statutory representative has requested it. The accused shall be informed about his right to submit a request. Sections 142, 143 and 145 shall apply mutatis mutandis.
(1) The assistance of defence counsel shall be mandatory if:
1. the main hearing is held at first instance at the Higher Regional Court or at the Regional Court;
2. the accused is charged with a serious criminal offence;
5. the accused has been detained for at least three months on the basis of a judicial order or with the approval of a judge and will be detained until at least two weeks prior to the commencement of the main hearing;
(2) In other cases the presiding judge shall appoint defence counsel upon application or ex officio if the assistance of defence counsel appears necessary because of the seriousness of the offence or because of the difficult factual or legal situation (...).”
(1) In the cases of Section 140 §§ (1) and (2), as soon as an indicted accused without defence counsel has been requested according to Section 201 to reply to the bill of indictment, defence counsel shall be appointed.
(3) Defence counsel may be appointed during the preliminary proceedings. The public prosecutor’s office shall request such an appointment if, in its opinion, the assistance of defence counsel pursuant to Section 140 §§ (1) or (2) is necessary during the court proceedings. (...).
(4) The judge presiding over the court with jurisdiction in respect of the main proceedings or over the court to which the case has been assigned shall decide on the appointment.”
Relying on Article 6 of the Convention the applicant complained that his request to appoint his chosen representative as official defence counsel for the preliminary investigation proceedings had been refused, and about the decisions confirming the refusal.
The applicant complained that the public prosecutor had refused his request to appoint Mr. B., his representative, as official defence counsel during the preliminary investigation proceedings. He claimed that he lacked the means to pay for defence counsel of his own choosing and that he was charged with the most serious criminal offences, namely intentional homicide and murder. Moreover, it would be exceptionally difficult for him to organise his defence himself, as he had been detained on other grounds, that is in the context of different proceedings. He also argued that the public prosecution had taken advantage of the fact that he had already been detained on other grounds, because pursuant to section 117 § (4) of the Code of Criminal Procedure there would have been a legal obligation to appoint official defence counsel after three months of pre-trial detention, if his detention had been ordered in the context of the preliminary investigation proceedings at stake. Furthermore, section 140 and 141 of the Code of Criminal Procedure obliged the authorities to appoint official defence counsel in his case.
The applicant invoked Article 6 of the Convention which reads, so far as relevant, as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ...”
3. 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; ...”
The Court notes that the case raises issues under Article 6 § 3 (c), laying down specific rights of the defence in criminal proceedings. The guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set out in paragraph 1 (see Rowe and Davis v. the United Kingdom [GC], no. 28901/95, § 59, ECHR 2000-II). It will, therefore, examine the complaints under both provisions taken together.
Court observes at the outset that the case raises two closely linked
preliminary questions. Firstly, it might be questioned whether the
applicant can claim to be a victim of a violation of his right to
legal assistance at a stage of the proceedings where it cannot be
said whether an indictment will be made, let alone whether he will be
convicted. Secondly, it might be questioned whether the applicant has
exhausted domestic remedies.
The Federal Constitutional Court declared his constitutional complaint inadmissible, holding that the alleged violation could still be challenged in the main proceedings without the applicant incurring any major disadvantages.
Nevertheless, and assuming admissibility in this respect, the Court will examine the complaint in the light of the relevant principles established in its case-law (see Quaranta v. Switzerland, 24 May 1991, §§ 27 et seq., Series A no. 205, and Imbrioscia v. Switzerland, 24 November 1993, §§ 36 38, Series A no. 275, and Salduz v. Turkey [GC], no. 36391/02, §§ 50-55, 27 November 2008).
First of all, the Court underlines that its task is not to answer the question whether, according to the relevant provisions of the German Code of Criminal Procedure, the Cologne Public Prosecutor’s Office was under an obligation to make a request with the competent court for the appointment of the applicant’s representative as official defence counsel. The Court’s task is to assess whether, from the Convention point of view, the applicant’s defence rights were respected to a degree which satisfies the guarantees of a fair trial under Article 6 of the Convention (see HanZevački v. Croatia, no. 17182/07, § 20, 16 April 2009).
to the Court’s case-law, even if the primary purpose of
Article 6, as far as criminal matters are concerned, is to
ensure a fair trial by a “tribunal” competent to
determine “any criminal charge”, it does not follow that
the Article has no application to pre-trial proceedings.
Thus, Article 6, especially paragraph 3, may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions. The manner in which Article 6 §§ 1 and 3 (c) are applied during the preliminary investigation depends on the special features of the proceedings and the circumstances of the case (see Imbrioscia v. Switzerland, cited above, §§ 36-38, and Shabelnik v. Ukraine, no. 16404/03, § 52, 19 February 2009).
not absolute, the right of everyone charged with a criminal offence
to be effectively defended by a lawyer, assigned officially if need
be, is one of the fundamental features of a fair trial (see Krombach
v. France, no. 29731/96, § 89, ECHR 2001 II). Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer at the initial stages of police interrogation. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (see Salduz v. Turkey [GC], cited above, § 55, and Shabelnik
v. Ukraine, no. 16404/03, § 53, 19 February 2009).
regards the right of a person charged with a criminal offence to free
legal assistance, the Court observes that this right is one element,
amongst others, of the concept of a fair trial in criminal
proceedings (see Quaranta
v. Switzerland, cited above, § 27, and Toeva v. Bulgaria (dec.), no. 53329/99, 9 September 2004). Sub-paragraph (c) of Article 6 § 3 attaches two conditions to this right. The first is lack of “sufficient means to pay for legal assistance” and the second is whether in that event the “interests of justice” required that the applicant be granted such assistance.
Turning to the facts of the instant case, the Court notes that the refusal to appoint Mr. B., the applicant’s chosen defence counsel, as official defence counsel did not disclose a lack of respect for his defence rights.
assuming that the applicant eventually lacked the financial means to
pay for a defence counsel of his own choosing, the Court notes that
he had indeed, as soon as the request for his questioning was
launched, access to a lawyer. Since August 2008 he had been
represented by counsel of his own choosing and the counsel performed
different procedural acts for him, such as lodging an appeal,
consulting the case file and communicating with the Public
Prosecutor’s Office on the applicant’s defence strategy.
In particular, the applicant’s counsel lodged the request to appoint official defence counsel as well as the subsequent appeals against the refusal of this request, which is at stake in the instant case. Hence, the “interests of justice” did not require that the applicant’s chosen defence counsel be appointed official defence counsel. The applicant has been and still is represented by the same counsel of his own choosing and he has not put forward any grounds making a different procedural approach necessary to ensure the rights of the defence in the instant case.
Against this background the Court finds that there is no indication of a violation of Article 6 §§ 1 and 3 (c) of the Convention. It follows that the
application is manifestly ill-founded and should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen