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Постановление ЕВРОПЕЙСКОГО СУДА по ПРАВАМ ЧЕЛОВЕКА от 28.11.1978 ЛЮДИКЕ (LUEDICKE), БЕЛКАСЕМ (BELKACEM) И КОЧ (KOC) ПРОТИВ ФЕДЕРАТИВНОЙ РЕСПУБЛИКИ ГЕРМАНИИ [РУС. (ИЗВЛЕЧЕНИЕ), АНГЛ.]

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   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 ({a 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  {employee a 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  "{employee  a  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. Koc}, 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. Koc}) 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.  Koc}  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 {Koc} 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: {Gerard} J. WIARDA
                                                             President
   
                                           Signed: {Marc-Andre} 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. Koc'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. Koc}  complained  in  his
   application   is  thus  eliminated.  However,  {Mr.  Koc'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. Koc} 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.  Koc'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.
   
   


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