M. proti Německu



The European Commission of Human Rights sitting in private on

3 December 1986, the following members being present:

MM. C.A. NØRGAARD, President

E. BUSUTTIL

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs G.H. THUNE

Sir Basil HALL

Mr F. MARTINEZ

Mr J. RAYMOND, Deputy Secretary to the Commission

Having regard to:

- Article 25 (art. 25) of the Convention for the Protection of Human

Rights and Fundamental Freedoms;

- the application introduced on 28 September 1979 by G.M. against the

Federal Republic of Germany and registered on 1 October 1979 under

file No. 8796/79;

- the Commission's decision of 10 July 1981 to bring the application

to the notice of the respondent Government and to adjourn further

examination of the present case pending the determination of the

Öztürk case (Application No. 8544/79);

- the judgments given by the European Court of Human Rights in the

Öztürk case - Eur. Court H.R., Öztürk judgment of 21 February 1984,

Series A No. 73, and Eur. Court H.R., Öztürk judgment of

23 October 1984 (Article 50) (art. 50), Series A No. 85;

- the Commission's decision of 5 December 1984 to request the

Government to state whether or not they would waive such objections as

they might have against the admissibility of the present application;

- the Government's letter of 26 February 1985;

- the Commission's decision of 11 March 1985 inviting

Rechtsanwalt Wingerter to submit further evidence;

- Rechtsanwalt Wingerter's letter of 29 June 1985;

- the Commission's decision of 6 July 1985 to invite the Government to

file, before 1 October 1985, such observations as they might wish to

make on the application;

- the Government's letter of 20 September 1985 requesting an extension

of the above time-limit;

- the President's order of 30 September extending the time-limit to

2 December 1985;

- the Government's letter of 6 December 1985 stating that they wished

to settle the case;

- the Government's letter, enclosing a copy of their letter to the

applicant's representative with a draft agreement, of 21 May 1986;

- the Government's letter of 17 September 1986 enclosing the agreement

reached between the parties;

- the applicant's letter of 10 October 1986;

Having deliberated;

Decides as follows:

THE FACTS

The facts as submitted by the applicant may be summarised as follows:

The applicant is an Italian citizen born in 1952 and residing at

Heilbronn-Biberach (Federal Republic of Germany). In the proceedings

before the Commission he is represented by Rechtsanwälte N. Wingerter,

V. Hohbach and others, lawyers practising in Heilbronn.

By a notice of regulatory fine (Bussgeldbescheid) dated 17 August 1978

the administrative authorities at Heilbronn imposed a fine of 60 DM on

the applicant on the ground that he had committed a road traffic

offence. The authorities stated that when driving away from the right

hand side of the road on 3 July 1978 at 7 p.m. the applicant had

failed to observe the traffic behind his car and had caused a damage

to another car of 600 DM. The applicant lodged an objection

(Einspruch) against this notice.

At a hearing of 23 November 1978 before the District Court

(Amtsgericht) at Heilbronn the applicant was convicted of a road

traffic offence and fined 20 DM. Since he was not sufficiently

familiar with the German language he was assisted by an interpreter at

the hearing.

By a bill for costs (Kostenrechnung) of the Public Prosecutor's Office

(Staatsanwaltschaft) at Heilbronn dated 1 February 1979 the applicant

was ordered to pay the costs of the proceedings of 153.30 DM. The

costs included an amount of 91.30 DM for interpreters' fees.

The applicant lodged an objection (Erinnerung) against the bill for

costs. By a decision (Beschluss) of 18 June 1979 the Heilbronn

District Court rejected the objection. It referred to a judgment

given by the European Court of Human Rights (Eur. Court H.R.,

Luedicke, Belkacem and Koç judgment of 28 November 1978, Series A

No. 29) and held that Article 6 para. 3 (e) (art. 6-3-e) of the

Convention is only applicable when interpretation costs have been

incurred in criminal proceedings. However, in proceedings under the

Contravention of Regulations Act (Ordnungswidrigkeitengesetz) the

principle enounced in the above judgment could not be applied. The

District Court noted that the same view had been expressed by the

Ministry of Justice of Baden-Wuerttemberg on 22 March 1979.

COMPLAINTS

The applicant complained that he was ordered to pay the interpretation

costs. He alleged a violation of Article 6 (art. 6) of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 28 September and registered on

1 October 1979.

On 10 July 1981 the Commission decided to bring the application to the

notice of the respondent Government and to adjourn further examination

of the present case pending the determination of the Öztürk case

(Application No. 8544/79).

On 5 December 1984 the Commission resumed its examination of the

present case in the light of the judgments given by the European Court

of Human Rights in the Öztürk case - Eur. Court H.R., Öztürk judgment

of 21 February 1984, Series A No. 73, and Eur. Court H.R., Öztürk

judgment of 23 October 1984 (Article 50) (art. 50), Series A No. 85.

The Commission decided to request the Government to state whether or

not they would waive such objections as they might have against the

admissibility of the present application.

The Government replied in a letter of 26 February 1985.

In accordance with their request the Commission decided on

11 March 1985 to invite Rechtsanwalt Wingerter:

- to submit a recent power of attorney or equivalent document showing

that the applicant intended to maintain his application; and

- to adduce evidence that the interpretation fee of DM 91,30 was

indeed paid and, if so, to state whether the applicant personally had

borne it.

In his reply of 29 June 1985 Rechtsanwalt Wingerter stated that the

interpretation fee had been paid by the applicant. He enclosed a

recent power of attorney signed by the applicant and dated

28 June 1985.

On 6 July 1985 the Commission decided to invite the Government to

file, before 1 October 1985, such observations as they might wish to

make on the application. This time-limit was at the Government's

request extended to 2 December 1985.

By a letter of 6 December 1985 the Government informed the Commission

of their intention to settle the case.

By a letter of 21 May 1985 the Government informed the Commission of

the terms of a draft agreement which they had sent to Rechtsanwalt

Wingerter.

Under cover of their letter of 17 September 1986 the Government

submitted the agreement reached between the parties.

The agreement reads as follows (German original):

"V e r e i n b a r u n g

betr. das am 1. Oktober 1979 von der Europäischen Kommission für

Menschenrechte registrierte Individualbeschwerdeverfahren No. 8796/79

z w i s c h e n

Herrn G.M., Rilke-Strasse 21, 7100 Heilbronn-Biberach,

vertreten durch Rechtsanwälte Norbert Wingerter, Volker Hohbach u.a.,

Heilbronn,

u n d

der Bundesrepublik Deutschland, vertreten durch Ministerial-

dirigentin Irene Maier, Bundesministerium der Justiz, 5300 Bonn 2

1. Dem Beschwerdeführer werden die in dem Bussgeldverfahren vor

dem Amtsgericht Heilbronn - 31 OWi 3397/78 - entstandenen und von ihm

gemäss Kostenrechnung 81 VRS 531/79 vom 1.2.1979 gezahlten

Dolmetscherkosten von 91,30 DM zurückerstattet.

2. Die Bundesregierung zahlt dem Beschwerdeführer zur Abgeltung

der ihm im Erinnerungsverfahren gegen diesen Kostenansatz und

anlässlich der Einlegung der Individualbeschwerde bei der Europäischen

Menschenrechtskommission entstandenen Kosten und Auslagen einen Betrag

von insgesamt 600,- (sechshundert) D-Mark.

3. Die Beträge zu 1. und 2. werden an die Verfahrensbevoll-

mächtigten des Beschwerdeführers, Rechtsanwälte Norbert Wingerter,

Volker Hohbach u.a. überwiesen, die sich verpflichten, die

Bundesregierung hinsichtlich der Zahlung gegenüber dem

Beschwerdeführer freizustellen.

4. Der Beschwerdeführer erklärt die Beschwerde hiermit für

erledigt und ist mit der Streichung aus dem Register durch die

Europäische Kommission für Menschenrechte einverstanden.

Bonn, den 21. Mai 1986 Heilbronn, den 7.9.1986

gez. I. Maier gez. Wingerter

(Ministerialdirigentin (Rechtsanwalt Wingerter)"

Irene Maier)

(English translation by the Council of Europe)

"A g r e e m e n t

concerning individual Application No. 8796/79, registered with the

European Commission of Human Rights on 1 October 1979

b e t w e e n

Mr. G.M., Rilke-Strasse 21, 7100 Heilbronn-Biberach,

represented by Messrs. Norbert Wingerter, Volker Hohbach and others,

lawyers, Heilbronn,

a n d

the Federal Republic of Germany, represented by Mrs. Irene Maier,

Ministerialdirigentin, Federal Ministry of Justice, 5300 Bonn 2

1. Interpretation costs of 91,30 DM incurred and paid by the

applicant in regulatory proceedings (Ref. 31 OWi 3397/78) before the

Heilbronn District Court in accordance with the bill of costs of

1 February 1979 (Ref. 81 VRS 531/79) shall be reimbursed.

2. In satisfaction of the costs incurred by the applicant in the

objection proceedings to the above-mentioned bill of costs and the

costs incurred in the submission of the applicant's complaint to the

European Commission of Human Rights, the Federal Republic shall pay to

the applicant the sum of 600 DM (DM six hundred).

3. The sums referred to in paragraphs 1. and 2. above shall be

paid to the applicant's representatives in the proceedings,

Messrs. Norbert Wingerter, Volker Hohbach and others, lawyers, who

undertake to indemnify the Federal Government against the applicant in

respect of the payment.

4. The applicant declares that the application is settled and

that he agrees to it being struck out of the list of cases of the

European Commission of Human Rights.

Bonn, 21 May 1986 Heilbronn, 7 September 1986

(signed) I. Maier (signed) Wingerter

(Ministerialdirigentin (Rechtsanwalt Wingerter)"

Irene Maier)

The Government stated that they had arranged for the sum of DM 691.30

to be paid to Rechtsanwalt Wingerter. They referred to para. 4 of the

above agreement and requested that the application be struck out of

the Commission's list of cases.

In a letter of 10 October 1986 Rechtsanwalt Wingerter stated that, on

behalf of the applicant, he wished to withdraw the application. He

also confirmed that he agreed to it being struck out of the list of

cases.

REASONS FOR THE DECISION

Rule 44 para. 1 of the Rules of Procedure provides:

"1. Unless it considers that any reason of a general character

affecting the observance of the Convention justifies further

examination of an application, the Commission may strike it out of its

list of cases:

a. where the applicant states that he wishes to withdraw his

application; or

b. where the circumstances .... lead to the conclusion that he does

not intend to pursue his application."

The Commission notes that the parties have reached an agreement on the

applicant's claims. The Government request that the application be

struck off the list. The applicant states that his application is

settled, that he wishes to withdraw it and that he agrees to the

Government's request that the application be struck out.

The Commission finds no reason of a general character affecting the

observance of the Convention which, following the above declarations

of the parties, necessitate a further examination of the present

application.

For these reasons, the Commission

DECIDES TO STRIKE THIS APPLICATION OFF ITS LIST OF CASES.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)