*. * * * * EUROPEAN COMMISSION OF HUMAN RIGHT S. Application No. 8398/78. Lütfü PAKELL I. against FEDERAL REPUBLIC OF GERMAN Y

Transcription

1 COUNCIL OF EUROPE * * * * * * * * * *. * * CONSEIL DE L'EUROP E Or. Englis h EUROPEAN COMMISSION OF HUMAN RIGHT S Application No. 8398/78 Lütfü PAKELL I against FEDERAL REPUBLIC OF GERMAN Y Report of the Commissio n (Adopted on 12 December 1981 ) STRASBOURG

2 - i /7 8 TABLE OF CONTENTS Page s I. INTRODUCTION (paras. 1-16) Substance of the application (paras. 3-7) Proceedings before the Commission (paras. 8-11)... 2 The present Report (paras ) II. ESTABLISHME NT OF THE FACTS (paras ) Relevant domestic law (paras ) Circumstances of the case (paras ) III. SUBMISSIONS OF THE PARTIES (paras ) Applicant (paras ) Government (paras ) IV. OPINION OF THE COMMISSION (paras ) Points at issue (para. 72) Art. 6 (3) (c) (paras ) Art. 6 (1) (paras ) APPENDICE S I. History of proceedings II. Decision on admissibility

3 8398/7 8 I. INTRODUCTION 1. ' The following is an outline of the case, as it has been presented by the parties to the European Commission of Human Rights, and an account of the Commission's procedure. 2. The applicant is a Turkish citizen born in 1937 and living in Turkey. The substance of the applicant's complaint s 3. The application concerns criminal proceedings against the applicant in the Federal Republic of Germany, where he lived from 1964 until In these proceedings he was on 30 April 1976 convicted by the Regional Court (Landgericht) of Heilbronn on charges of an offence against the Narcotics Act and of tax evasion and sentenced to two years' and three months' imprisonment. During his trial he was defended by Rechtsanwalt Wingerter ; who had been assigned to him as official defence counsel, and sometimes by Rechtsanwalt Rauschenbusch of the same law firm. 4. In an appeal on points of law (Revision) to the Federal Court (Bundesgerichtshof) Rechtsanwalt Wingerter alleged a violation of Art. 146 of the Code of Criminal Procedure (Strafprozessordnung) which provides that several accused persons may not be defended by one and the same defence counsel ; he pointed out that he had previously defended a person who, according to the Regional Court's findings, had jointly with the applicant committed the offences concerned. The Federal Attorney General (Generalbundesanwalt) applied for the appeal to be rejected on the ground that it had been introduced by a defence counsel who was prevented from acting i n that capacity. Thereupon Rechtsanwalt Rauschenbusch filed a petition for restitutio in integrum to enable him to lodge a new appeal. This petition was granted by the Federal Court and Rechtsanwalt Rauschenbusch, appointed as official defence counsel for the filing of the memorial setting out the grounds of the new appeal, alleged violations of procedural law in his memorial. The Public Prosecutor's Office (Staatsanwaltschaft) at the Regional Court filed a counter-memorial which was served on Rechtsanwalt Rauschenbusch. /.

4 8398/ The Federal Court having fixed a date for the hearing, Rechtsanwalt Rauschenbusch requested that he be appointed official defence counsel also for the hearing. This was refused by the Court on the ground that neither the legal nor the factual situation justified such appointment. On 29 November 1977, after a hearing in the presence of a Federal Attorney at which neither the applicant nor Rechtsanwalt Rauschenbusch appeared, the Federal Court dismissed the appeal on points of law as unfounded. 6. The applicant filed a constitutional appeal (Verfassungsbeschwerde) but a committee of three judges of the Federal Constitutional Court (Bundesverfassungsgericht), finding that the appeal did not offer a sufficient prospect of success, refused to accept it for decision. 7. The applicant now complains of the refusal of his petition for the appointment of an official defence.counsel for the hearing of his appeal. He alleges violations of his right, under Art. 6 (1) of the European Convention on Human Rights, to a fair hearing, including equality of arms between prosecution and defence, and of his right, under Art. 6 (3)(c), to free legal assistance, in the oral proceedings before the Federal Court. Proceedings before the Commissio n 8. The present application was lodged with the Commission on 5 October and registered on 25 October On 7 May 1981 the Commission declared admissible the applicant's complaint concerning the refusal of his petition fo r the appointment of an official defence counsel for the appeal hearing. At the same time it declared inadmissible, for non-exhaustion of domestic remedies, his three ancillary complaints that he was prevented by the German authorities from appearing at the appeal hearing, tha t he did not have the means to return from Turkey, and that he was unable to pay an interpreter, for that hearing. 10. At a hearing on the merits of the case on 14 October 1981, the parties were represented as follows : the applicant(1) by Rechtsanwalt Norbert Wingerter, the Government by Ministerialdirigentin Irene Maier, as Agent, and Bund'esanwalt Dr Josef Fabry and Regierungsdirektor Kurt Kemper as Advisers. 11. Following the decision on admissibility, the Commission, acting in accordance with Art. 28 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the matter. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected. (1) Having been granted free legal aid on 16 May 1980.

5 /7 8 The present Repor t 12. The present Report was prepared by the Commission in pursuance of Art. 31 of the Convention, after deliberationsand votes in plenary session, the following members being present : MM. G. SPERDUTI, Acting President (Rule 7 (1) of the Rules of Procedure ) J.A. FROWEIN J.E.S. FAWCETT G. JORUNDSSON S. TRECHSEL B. KIERNA N M. MELCHIOR J. SAMPAIO J.A. CARRILLO A.S. GOZUBÜYIIK A. WEITZEL J.C. SOYE R 13. The text of the Report was adopted by the Commission o n 12 December 1981 and is now transmitted to the Committee of Ministers in accorance with Art. 31 (2). 14. A friendly settlement of the casehaving not been reached, the purpose of the present Report, pursuant to ArE. 31 of the Convention, is accordingly : (1) to establish the facts ; an d (2) to state an opinion as to whether the facts found disclose a breach by the respondent Government of their obligations under the Convention.

6 8398/ A schedule setting out the history of proceedings before the Commission and the Commission's ecision on Admissibility in the case are attached hereto as Appendices I and II. 16. The full text of the pleadings of the parties, together with the documents lodged as exhibits, are held in the archives of the Commission and are available to the Committee of Ministers, if required.

7 /7 8 II. ESTABLISHMENT 0F THE FACT S A. The relevant domestic la w 17. The Federal Court's decision to hold a hearing was taken under Art. 349 of the Code of Criminal Procedure. This provision authorises the appeal court to determine an appeal on points of law without a hearing only in the following cases : - where the appeal is inadmissible (para. 1) ; - where the court considers unanimously that the appeal is manifestly ill-founded (para. 2) ; and - where the court finds unanimously that the appeal is wellfounded (para. 4). In none of the above cases is the court obliged to proceed without a hearing. A hearing is mandatory in all other cases under para. (5) of Art Art. 350 of the Code contains in paras. (1) and (2) the following provisions concerning the notification of the appeal court's decision to hold a hearing and the attendance and representation of the accused at the hearing : "(1) The accused and his defence counsel shall be informed of the time and place of the trial. Where it is not possible to notify the accused, it is sufficient to merely notify the defence counsel. (2) The accused may appear at the trial or may be represented by a defence counsel appointed under a power of attorney in writing. An accused who is not at liberty has no right of attendance. " 19. Art. 350 ( 3) provides : "Where an accused who is not at liberty has not chosen a defence counsel, one will be appointed for him for the proceedings on his application to the Presiding Judge. Such an application must be made within one week of the accused's being notified of the date of the trial and of his right to make such a request."

8 8398/ Art. 350 does not state the circumstances in which an accused person who is at liberty may claim the appointment of an official defence counsel for the appeal hearing. 21. Under the general rule of Art. 140 of the Code, the appointment of defence counsel is according to para. (1) "ncessary" where : "(1) the trial is before the Court of Appeal (Oberlandesgericht) or the Regional Court at first instance ; (2) the accused is accused of a felony ; (3) the proceedings may result in a prohibition in the exercise of a profession (Berufsverbot) ; (4) the accused is deaf or dumb ; (5) the accused has been detained in prison for at least three months as a result of a judicial order or with judicial approval and has not been released at least two weeks before the trial ; (6) the question arises whether the accused should be detained under Art. 81 for the purpose of preparing an opinion on his mental condition ; (7) the case conceived preventive detention ; (8) the previous defence counsel is precluded from taking further part in the proceedings by virtue of a decision. " 22. Art. 140 (2) states : "In other cases the President may on the accused's application or of his own motion appoint a defence counsel if it appears to be required as a result of the seriousness of the act, the complexity of the legal or factual position or if it appears that the accused cannot defend himself. " 23. Under Art. 140 (3), first sentence, the appointment of a defence counsel pursuant to para. (1)(5) can be terminated "if the accused is released from prison more than two weeks before the trial. " 24. The Federal Court has held that Art. 140 (1) is not applicable to hearings of appeals on points of law, for which an official defence counsel may only be appointed under Art. 140 (2) (BGH St 19, 258 <259>). /

9 / The Federal Constitutional Court, in a decision o f 19 October 1977 (BVerfGE 46, 202), deduced from the right to a fair hearing under the Basic Law (Grundgesetz) that, apart from the cases covered by Art. 140 (2) of the Code of Criminal Procedure, free legal assistance must also be granted, for the hearing of an appeal on points of law, in other, "very serious" ("schwerwiegende") cases. 26. Art. 351 of the Code of Criminal Procedure states that the course of a hearing of an appeal on points of law shall be as follows : "(1) The proceedings start with the Rapporteur's address. (2) The comments and submissions of the prosecution and the accused and his counsel shall then b e heard, those of the appellant being presented first. The accused shall have the final word. " B. The circumstances of the cas e The background to the criminal complained o f proceedings 27. The applicant states that he attended primary school in Istanbul from 1944 to 1948, secondary school from 1948 to 1954, leaving with the "medium maturity" certificate, and from 1954 to 1957 technical high school. From 1957 to 1959 he worked as a bookkeeper with a building firm. Then he was a soldier for eighteen months. For six months he was assigned to an officers' training school at Ankara leaving as a lieutenant. At the end of 1960 he was discharged from the army. Until 1963 he again worked with the building firm he had been employed with before. From 1963 to 1964 he was a foieman in a glassworks in Istanbul. 28. In February 1964 the applicant went to the Federal Republic of Germany. At that time he had a work contract with the firm of Audi-NSU at Neckarsulm. After two and a half years he left Audi-NSU. Thereafter he followed various trades. Until 1971 he was employed as a mechanic with the firm of Gebrüder Spohn at Neckarsulm. Then, for a time, he managed the restaurant "Zur Linde" at Neckarsulm, but he did not get the necessary licence from the competent German authority. Following that he worked as an unattached agent of the insurance company Deutscher Lloyd and for the Heimbausparkass e (Home Building and Loan Association) concluding savings contracts, life insurance contracts etc. with Turkish workers. He thus earned "a very good monthly income". In 1969 he tried to open a textile and electro retail business and in 1971 a Spanish restaurant, but was not granted the licence therefor. /.

10 8398/ The proceedings complained of in the present applicatio n were preceded by criminal proceedings in 1972/73. On 22 February 1972, when being interrogated by the criminal police at Heilbronn on suspicion of having dealt with narcotics, the applicant stated that he was working as an interpreter. He declared : "I can understand the German language. I also act as an interpreter for my fellow countrymen a t the labour office and the town hall. An interpreter is therefore not required". The applicant made a declaration to the same effect at his trial by the District Court (Amtsgericht) of Heilbronn on 31 May 1972 and consequently no interpreter was appointed for him. He was convicted of a narcotics offence and sentenced to ten months' imprisonment suspended on probation. His appeal (Berufung) from that judgment was dismissed by the Regional Court of Heilbronn on 12 March The proceedings complained of in the present applicatio n 30. In the criminal proceedings which form the subject of the present application the applicant was on 7 27ay 1974 arrested on suspicion of having committed a further narcotics offence. On that occasion he told the police that he had in the summer of 1972 been apprehended in Bulgaria when trying to transport from Turkey to Germany about 16 kilograms of cannabis resin hidden in the sideparts of his car, that he had been sentenced in Bulgaria to six months' imprisonment and that he had served four and a half months of that sentence. 31. The periods of the applicant's detention in the Federal Republic of Germany, between his arrest on 7 May 1974 and his trial by the Regional Court of Heilbronn in April 1976, in the criminal proceedings complained of in the present application, were as follows : 8 to 27 May 1974 detention on remand ; 28 May to 25 June 1974 execution of a sentence (of 1973, by the District Court of Heilbronn) for abetting ; 26 June to 29 September 1974 detention on remand ; 30 September 1974 to 13 February 1975 execution of another sentence ; 14 February 1975 to 6 April 1976 detention on remand. 32. On 4 September 1974 Rechtsanwalt Wingerter, Heilbronn, was assigned to him as official defence counsel in the criminal proceedings. 33. The applicant's trial before the Regional Court began o n 7 April It was continued on 8, 14, 23 and 30 April The applicant was defended by Rechtianwalt Wingerter, sometimes also by Rechtsanwalt Rauschenbusch of the same law office. The applicant said nothing about his knowledge of German, and an interpreter was appointed for him.

11 / By judgment of 30 April 1976 the Regional Court convicted the applicant on charges of an offence against the Narcotics Act (Vergehen gegen das Betaubungsmittelgesetz) and of tax evasion (Steuerhinterziehung) and sentenced him to two years' and three months' imprisonment. The Court found it established that, in the spring of 1972, the applicant had illegally imported 16 kilograms of cannabis resin, hidden in his car, from Turkey into the Federal Republic of Germany. 35. In May 1976 Rechtsanwalt Wingerter filed an appeal on points of law against the above judgment. In his memorial of 5 August 1976 setting out the grounds of appeal he alleged inter alia a violation of Art. 146 of the Code of Criminal Procedure which provides that several accused persons may not be defended by one and the same defence counsel. Rechtsanwalt Wingerter pointed out that he had previously defended a person who, according to the Regiona l Court's findings, had committed the offence of which the applicant was convicted jointly with him In October 1976 the Federal Attorney General applied for the appeal to be rejected as inadmissible on the ground that it had been introduced by a defence counsel who, according to his own submissions, was prevented from acting in that capacity in the applicant's case. 37. In November 1976 Rechtsanwalt Rauschenbusch filed a petition for restitutio in integrum to enable him to lodge a new appeal on points of law, which he introduced at the same time. 38. On 21 December 1976 the Federal Court granted the petition for restitutio in integrum. On 13 January 1977 the Regional Court appointed Rechtsanwalt Rauschenbusch as official defence counsel for the filing of the memorial setting out the grounds of the new appeal. On 27 January 1977 Rechtsanwalt Wingerter was, as requested, discharged by the Regional'Court from his duties as official defence counsel. 39. In his memorial of 26 January 1977 setting out the grounds of the new appeal, a document of 34 pages, Rechtsanwalt Rauschenbusch alleged violations of procedural law (including Art. 146 of the Code of Criminal Procedure) only. 40. In submissions of 14 March 1977 the Public Prosecutor's Office at the Regional Court applied for the new appeal to be rejected as inadmissible on the ground that Rechtsanwalt Rauschenbusch, like Rechtsanwalt Wingerter, was prevented under Art. 146 of the Code of Criminal Procedure from acting as defence counsel in the applicant's case.

12 8398/ Rechtsanwalt Rauschenbusch, in his reply of 23 March 1977, submitted that Art. 146 did not apply in his case as he had at no time defended the applicant's accomplice (cf. para. 35 above). 42. In a counter-memorial of 20 pages dated 1 August 1977 the Public Prosecutor's Office dealt with the allegations in Rechtsanwalt Rauschenbusch's memorial of 26 January Rechtsanwalt Rauschenbusch received a copy of the counter-memorial on 17 August The Office of the Federal Attorney (Bundesanwaltschaft) having requested a hearing, the Federal Court ordered on 13 October 1977 that the appeal should be heard on 29 November [dotice of this order was given to Rechtsanwalt Rauschenbusch and to the applicant who, following his release from detention on 10 August 1976, had returned to Turkey. 44. On 24 October 1977 Rechtsanwalt Rauschenbusch requested that he be appointed official defence counsel for the hearing of the appeal on 29 November This request was refused by the Federal Court on 25 October The Federal Court stated that, under Art. 350 (3) of the Cnde of Criminal Procedure, an accused person at liberty could not request the appointment of an official defence counsel for the hearing of the appeal. Such a person was free, under para. (2) of Art. 350, either to appear in person, or to be represented by counsel, or not to be represented at all. It was the appeal court's duty to review the judgment of the court of first instance on the basis of the written grounds of appeal. Neither the legal nor the factual situation justified the appointment requested by Rechtsanwalt Rauschenbusch. 46. In his objection (Gegenvorstellungen) of 7 November 1977 to the above decision Rechtsanwalt Rauschenbusch relied on the decision of the Federal Constitutional Court of 19 October 1977 (cf para. 25 above). Rechtsanwalt Rauschenbusch submitted that the present case was very serious for the applicant : should his conviction become final he would be expelled from the Federal Republic of Germany and his civil existence there would be destroyed. He asked to be notified in case a means certificate should be required by the Federal Court and observed in this connection that the applicant after his long detention obviously had no savings and was unable to pay the cost s of a defence counsel of his choice. 47. On 10 November 1977 the Federal Court, distinguishing the present case from that decided by the Federal Constitutional Court, maintained the refusal of legal aid for the hearing of the appeal.

13 / On 29 November 1977, after a hearing in the presence of a Federal Attorney (Bundesanwalt) at which neither the applicant nor Rechtsanwalt Rauschenbusch appeared, the Federal Court dismissed the applicant's appeal on points of law as unfounded. In its ten-page judgment the Court held that the (second) appeal on points of law had been properly introduced by Rechtsanwalt Rauschenbusch who was not barred by Art. 146 of the Code of Criminal Procedure from representing the applicant in the appeal proceedings. This provision had, as alleged by the defence (cf paras 35 and 39 above), been violated at the applicant's trial. But according to the Federal Court's case-law an appeal on points of law invoking such a violation could only succeed if the defence of severa l accused persons by a common defence counsel was incompatible with the task of the defence in the concrete case (Auf die Verletzung des 146 StPO kann die Revision mit Erfolg jedoch nur gestützt werden, wenn die Verteidigung der mehreren Beschuldigten durch einen gemeinsamen Verteidiger der Aufgabe der Verteidigung im Einzelfall tatsachlich widerspricht). In the present case no conflict of interests had been established. The Federal Court further held that motions to obtain expert evidence, and to have witnesses examined in Turkey, had been properly refused by the Regional Court and that the memorial setting out the grounds of appeal did not in any other respect show the appearance of a violation of procedural law. The judgment was served on counsel for the defence on 21 December In January 1978 Rechtsanwalt Wingerter filed a constitutional appeal alleging violations of Arts. 1, 2, 3, 6, 20 and 103 (1) of the Basic Law. He repreated the submissions made in his objection to the Federal Court (para. 46 above) and argued that legal aid for the appeal hearing should have been granted in view of the applicant's limited knowledge of German and the difficulty of the legal issues raised in the appeal. The Federal Court's decision to hold a hearing implied that this was a serious case (1). Counsel also stated that the applicant's family (2) lived in the Federal Republic of Germany and that his wife was not prepared to follow him to Turkey. (1) The parties agree that, in criminal proceedings before the Federal Court, only about 10% of the appeals on points of law are heard orally. (2) The applicant's first wife had a fatal accident in Turkey in 1965 ; his son from that marriage lives in Turkey. In 1967 the applicant married a Spanish woman in Germany. She lives with their daughter in Berlin.

14 8398/ On 10 May 1978 a committee of three judges of the Federal Constitutional Court, finding that the constitutional appeal did not ofeer a sufficient prospect of success, refused to accept it for decision. The committee stated that the applicant's case was not "very serious" within the meaning of the Court's decision o f 19 October 1977 (para. 46 above) and added that the applicant "could have remained in the Federal Republic of Germany and could - if necessary assisted by an interpreter - have participated in the hearing" before the Federal Court.

15 /7 8 III. SUBMISSIONS OF THE PARTIE S 51. The parties' submissions concerning the applicant's admitted complaint may be summarised as follows : A. The applic an t 52. The applicant alleges a violation of Art. 6 (3) (c) in fine of the Convention, which guarantees the right of everyone charged with a criminal offence, who has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require. He submits that he could not afford a defence counsel of his own choosing and that the interests of justice required the appointment of counsel to represent him at the hearing of his appeal before the Federal Court. 53. The applicant further invokes the principle of "equality of arms", embodied in Art. 6 (1) of the Convention, and the Commission's decision on the admissibility of Application No. 1035/61 (Collection of Decisions 10, 12) concerning written proceedings, relating to an appeal on points of law, before a Court of Appeal (Oberlandesgericht) in the Federal Republic of Germany. He submits that the function of the defence in criminal proceedings concerning appeals on points of law is exercised in two stages : first stage - entry of the appeal, filing grounds of appeal, replying to observations of the prosecution ; second stage : preparation for and attending the hearing. In the present case the principle of "equality of arms" was observed during the trial at first instance and during the written, but not during the oral appeal procedure. The appointment of Mr. Rauschenbusch as official defence counsel had ended with the fixing of the date for the hearing before the Federal Court ; he had not been appointed as the applicant's personal lawyer. 54. The applicant does.not accept that his lawyers, by invoking Art. 146 of the Code of Criminal Procedure, made their own conduct at the trial a ground of appeal. It was the presiding judge of the Regional Court who appointed Rechtsanwalt Wingerter as official defence counsel to two accomplices, who were being tried in separate proceedings, before decisions on the new version of Art. 146 were available. It subsequently became. apparent that this appointment was incompatibl e with the relevant case-law of the Federal Court. 55. As regards the applicant's financial situation following his release from prison, the fact that he started a business on his return to Turkey did not mean that he then had money of his own. In Turke y it is possible to open a business with the help of friends and relations without any capital. Rechtsanwalt Wingerter, who represented the applicant before the Federal Constitutional Court, has so far neither requested nor received any fee for that work.. /.

16 8398/ If one attaches any significance to a hearing before the Federal Court one must ensure that counsel for the defence can take part in the proceedings. The Federal Court fixed a date for hearing because it did not regard the appeal as manifestly ill-founded. In a case of this sort the hearing before the Federal Court is a significant matter. 57. In German criminal proceedings the defence also contributes to guaranteeing a procedure governed by the rule of law. The prosecution is not only in the Federal Republic of Germany but in every member State of the Council of Europe obliged to contribute objectively to the finding of the law and the truth. "Equality of arms" in the strict sense is therefore an essential matter in all countries. B. The Governmen t 58. The Government submit that the right to free legal assistance under Art. 6 (3) (c) of the Convention is subject to two conditions : - that the accused person has not sufficient means to pay for legal assistance, an d - that the interests of justice require legal assistance. 59. The applicant's financial situation at the relevant time not having been established, the Government deny that he fulfillcd the first condition. They observe that the applicant had stated earlier that he was doing very well in Germany and that shortly after his return to Turkey he was in a position to start a business ; moreover, he was again represented by counsel in the proceedings before the Federal Constitutional Court. 60. The Government also consider that the appointment of counsel for the hearing before the Federal Court was not required by the interests of justice. In this respect, they recall that the applicant was legally represented in the written appeal proceedings which preceded the hearing. In particular, Rechtsanwalt Rauschenbusch filed written grounds for the appeal on points of law and was in a position to reply to the written submissions by the Public Prosecutor's Office at the Regional Court. 61. The Government stress that, in its examination of the applicant's appeal on points of law, which contained procedural complaints only, the Federal Court was bound by the Regional Court's establishment of the facts and limited to the specific complaints set out in Rechtsanwalt Rauschenbusch's memorial of 26 January Moreover, under Arts 344 to 347 and 352 of the Code of Criminal Procedure, those complaints could only be considered to the extent they were supported by reasons in writing submitted in time ; no new facts could be alleoed by the applicant at the hearing before the Federal Court.

17 / The Federal Court's decision to hold a hearing was according to the Government taken in the interest of procedural economy in view of the great number of complaints raised in the appeal ; at the same time it was an act of courtesy vis-à-vi s the applicant's lawyer. The Government further observe that, contrary to the applicant's view, neither a great number of complaints nor the volume of written pleadings by themselves render a criminal case factually or legally difficult - this depends alone on the substance of the reasons given for the appeal. 63. The appointment of counsel for the appeal hearing could, in the Government's view, only have been considered as required "in the interests of justice" if a violation of substantive law had been alleged. In a case quoted by the applicant in the proceedings before the Federal Constitutional Court, the Federal Court (t StR 624/77 ) had granted a request for legal aid for the hearing which had been motivated as follows : "A complaint alleging a violation of substantive law does not have to be supported by reasons in writing. The coplaintiffs, being appellants in the appeal proceedings, have no other course open to them but to plead their case orally before the Cour t at the hearing. " 64. It was true that a complaint on a point of substantive law must be lodged in time, but that no reasons need be given for it in writing. This meant that the present applicant, had his appeal alleged a violation of substantive law, could at the hearing before the Federal Court supplementarily have alleged facts and submitted legal arguments. In that case it might have appeared that the appointment of counsel also for the hearing was required to give the defence an opportuntiy to reply to observations by the Federal Attorney o n the substantive complaint. However, no such complaint was before the Federal Court in the present case. The first appeal lodged by Recbtsanvalt Wingerter, which alleged violations both of substantive and of procedural law, was inadmissible because Rechtsanwalt Wingerter was barred from representing the applicant in view of a possible conflict of duties arising from the fact that he had defended a co-accused. After the Federal Court had granted Rechtsanwalt Rauschenbusch's petition for restitutio in integrum, only the written pleadings filed by the latter were material ; the earlier submissions by Rechtsanwalt Wingerter were legally irrelevant.

18 3398/ The Government further submit that the applicant was not prevented from appearing in person at the hearing of his appeal. His return to Turkey was apparently motivated by the fear that he would have to serve the remainder of his sentence if it became final. By voluntarily leaving the Federal Republic of Germany he waived his right to be present at the hearing before the Federal Court. This conduct cculd not support his claim to have a counsel appointed for the hearing. 66. As the applicant was at liberty and, therefore, an appointment of counsel under Art. 350 (3) of the Code of Criminal Procedure was out cf consideration, the Federal Court had to examine whether this was a case of "mandatory defence" ("notwendige Verteidigung") within the meaning of Art. 140 (2) of the Code. An appointment under this provision requires that, either, the assistance of counsel appears necessary because of the gravity of the offence or the difficult y of the factual or the legal situation, or that the accused person manifestly cannot defend himself. These requirements have to do with the "interests of justice" emphasised in Art. 6 (3)(c) of the Convention. Whether the defendant can pay a defence counsel of his choice is, however, irrelevant under Art. 140 of the Code. If he has not instructed a counsel of his choice an official counsel mus t be appointed if the requirements of para. (1) or para. (2) of Art. 140 are fulfilled. Are they not met, even an indigent defendant cannot demand the appointment of counsel. 67. In the Government's view also the principle of a fair hearing (Art. 6 (1) of the Convention) does not require the appointment of counsel for the hearing of an appeal on points of law whenever the accused person cannot pay a counsel of his choice. In the case quoted by the applicant (cf para. 46 above), the Federal Constitutional Court deduced from the right to a fair hearing under the Basic Law that a defendant in criminal proceedings must not only be the object of the proceedings but be given an opportunity in order to preserve his rights to influence the course and result of the proceedings. This included that, if he could not pay the costs, free legal assistance must, apart from the cases listed in Art. 140 of th e Code of Criminal Procedure, also be accorded in other, "very serious" cases. Whether a case was a "very serious" one had to be determined in the light of the accused's interests (aus der Interessenlage des Beschuldigten). The decision on the appointment of counsel for the hearing of an appeal on points of law could thus be influenced by the possible result of the appeal proceedings and the effects it might be expected to have on the defendant's fate.

19 /7 8 In the Government's view, the applicant's case was not a very serious one within the meaning of the above decision. First of all, the earlier case - unlike the present one - concerned an alleged violation of substantive law and the sentence was increased by the appeal court ; an appeal on points of law had been lodged by the prosecution with the aim to have the sentence increased from imprisonment for a limited term to life imprisonment. In the applicant's case, however, an increase of the sentence was excluded under Art. 358 (2) of the Code of Criminal Procedure by the prohibition of a reformatio in peius because only he himself had appealed. Moreover, the applicant's deportation from the Federal Republic of Germany did not depend on the outcome of the appeal proceedings as his previous convictions already constituted a sufficient basis for his expulsion under Art. 10 (1) No 2 of the Aliens Act. The applicant himself, although he had been emphatically warned and was aware of the consequences of a new conviction, obviously did not regard his earlier conviction by the District Court of Heilbronn (para. 29 above) as being of essential importance to him. For, otherwise, it cannot be understood why, having appealed from that judgment, he did not appear at the hearing of that appeal before the Regional Court nor instruct counsel to represent him there. 68. When refusing the applicant's request for the appointment of counsel the Federal Court held that "also in other respects" there were no reasons which, in view of the factual and legal situation, might justify the appointment for the hearing of the appeal. The Government submit that, in addition to the reasons given above and especially under the aspect of the "equality of arms" rule contained in the guarantee of a fair trial under Art. 6 (1) of the Convention, it must be noted that, under German law, the public prosecutor is an organ of the administration of justice and as such not a party in criminal proceedings. He is, therefore, obliged objectively to contribute to the finding of the law and the truth and during the whole proceedings equally to take into account circumstances which exonerate as well as circumstances which incriminate the defendant. It follows in the Government's view that an equalty of arms in the strict sense is not the point in question in German law. Moreover, the Office of the Federal Attorney (Bundesanwaltschaft)., in appeal proceedings before the Federal Court, examine s the judgment of the Regional Court and the grounds for appeal independently. It.is part of its special duties to see

20 8398/ to the equal application of the law and the uniformity of the courts' case-law. The position of the Federal Attorney, it is true, is not comparable with that of the Procureur Général of the Belgian Court of Cassation. Nevertheless, in appeal proceedings some of the considerations apply to which the European Court of Human Rights referred in the Delcourt Case (paras. 27 et seq of the Judgment). 69. In the Government's view, the fact that only a Federal Attorney was present at the hearing, and not the applicant nor his counsel, does not by itself constitute a violation of the principle of a fair hearing. This could, at the most, come into consideration if the applicant, for a reason for which the Federal Republic of Germany was responsible, could not himself participate in the hearing or if such participation was denied to any representative authorised by him. However, this right was expressly grante d to the applicant by Art. 350 (2) of the Code of Criminal Procedure and he was not prevented from exercising it by any German authority. 70. The Government distinguish the present case from Application No. 834/60 (H. Glaser v. Austria, see Fourteen Individual Applications Against Austria, Report of the Commission of 17 December 1963 and Resolution (64) DH 1 of the Committee of Ministers of 5 June 1964) concerning oral appeal proceedings before the Court of Appeal o f Vienna. They consider that the present case is comparable to Applications Nos. 524/59 and 617/59 (H. Ofner and A. Hopfinger v. Austria, Report of the Commission of 23 November 1962, Resolution DH (63) 1 o f the Committee of Minsters of 5 April 1963) concerning written appeal proceedings before the Austrian Supreme Court. 71. The Government furthei submit that, the counter-memorial of the Public Prosecutor's Office of 1 August 1977 having been limited to relevant excerpts from the trial record, the Federal Attorney's oral address at the hearing before the Federal Court on 29 November constituted the reply to the legal arguments advanced b y Rechtsanwalt Rauschenbusch in his memorial of 26 January The appeal did not raise any disputed or difficult questions of law, the interpretation of the new version of Art. 146 of the Code of Criminal Procedure having been clarified by earlier decisions of the Federal Court. For this reason the Federal Court (whose Rapporteur had stated his opinion in writing before the hearing) could not have come to a different conclusion if, at the hearing, counsel for the defence had been present and addressed the Court.

21 /7 8 IV. OPINION OF THE COMMISSIO N A. Points at issu e 72. Following the Commission's decision on the admissibility of the application the points still at issue are : (1) under Art. 6 (3) (c) of the Convention : (a) whether this provision covers proceedings relating to appeals on points of law ; (b) whether the claim to free legal assistance is excluded on the ground that the applicant could have attended the hearing in person ; (c) whether the applicant had "sufficient means to pay for legal assistance" ; an d (d) whether "the interests of justice" required free legal assistance ; (2) under Art. 6 (1) : whether the hearing of the applicant's case before the Federal Court was fair. B. Art. 6 ( 3 1. Applicabilit y 73. Art. 6 (3) (c) provides that everyone charged with a criminal offence has the right "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". 74. The Commission notes that, in the appeal proceedings befor e the Federal Court, the applicant, although convicted by the Court of first instance, was still a person "charged with a criminal offence" within the meaning of Art. 6 (3). The Commission further recalls that, in the Artico Case (at paras. 85 et seq of its Report), it applie d Art. 6(3).(c) to appeal proceedings before the Italian Court of Cassation. The European Court of Human Rights (at paras. 31 et seq of it s Judgment) adopted the same approach. Both in the Artico

22 8398/ and in the present case the court proceedings concerned related to an appeal on points of law in a criminal case. The Commission finds no element in the present case which would nevertheless justify its distinction from the Artico case as regards the applicability of Art. 6 (3) (c). 75. The Commission concludes that Art. 6 (3) (c) had to be observed during all stages of the appeal proceedings before the Federal Court in the present case. 2. As to whether the claim to free legal assistanc is excluded on the eround that the applicant c o 76. The Government submit that, since the applicant could have been present at the hearing of his appeal, Art. 6 (3) (c) did not require him to be provided with free legal assistance. This submission apparently relies on the English text of the provision, which contains the word "or" between the first two rights ("to defend himself in person or through legal assistance of his own choosing") and the third one ("if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require"). 77. The Commission observes that, in the present case, it declared inadmissible,for non-exhaustion of domestic remedies, the applicant's complaints that he was prevented by the German authorities from appearing at the appeal hearing and thathe did not have th e means to return from Turkey to Germany for that hearing. It follows that the applicant can no longer complain that he himself could not attend the hearing. On the other hand the Commission, in its finding of non-exhaustion of domestic remedies, did not make any statement as to whether the applicant was in fact prevented from appearing. Consequently neither his ability nor his inability to attend has been established by the Commission. 78. As regards, moreover, the interrelation between the different rights guaranteed in Art. 6 (3) (c) and its significance for the accused person's right to free legal assistance, the Commission considers that the French text of this provision, in which the last rights are connected by the word "et", must also be taken into account as, according to the final clause of the Convention, it is equally authentic. In the Commission's view the French text clarifies that, both in the French and in the English text, the right to free legal assistance as the right to counsel in general is not excluded where the accused can appear in person. Indeed another interpretation woul d lead to a result not compatible with the object and purpose of Art. 6 (3) (c) because the choice of counsel and the right to free legal assistance would depend upon the non-appearance of the accused.

23 / The Commission concludes that, in the present case, the applicant's claim to free legal assistance for the appeal hearing cannot be excluded on the ground that he could have appeared in person. 3. As to the question of the applicant's mean s 80. The applicant submits that he could not afford a defence counsel of his own choosing for the appeal hearing. The Government state that it has not been established that the applicant was in fact without sufficient means at the relevant time. 81. The Commission notes that Arts. 140 and 350 (3) of the Code of Criminal Procedure do not consider the question of means in identifying the categories of cases in which legal aid is to be granted. It also notes that, before the appeal hearing, counsel offered to submit a means certificate, in support of the applicant's request for free legal aid, and that this was ignored by the Court, given the terms of the above provisions. 82. In view of these circumstances the Commission does not find that the Government can now challenge the applicant's allegation that he did not have sufficient means at the relevant time. The Commission consequently accepts this allegation in its examination of the complaint unde r Art. 6 (3)(c). 4. As to whether "the interests of justice" required legal assistanc e 83. It remains to be considered, under Art. 6 (3)(c) of the Convention, whether "the interests of justice" required that the applicant be assisted or represented by a lawyer at th e hearing of his appeal. This question, which is in dispute between the parties, must be answered in the light of the Commission's and Court's case law and the particular circumstances of the present application. /

24 8398/ The Commissio ṅ has held i n Application No 2676/65 (Collection of Decisions 23, 31 /3 5/) that Art. 6 (3) (c) "guarantees to an accused person that the proceedings againsthim will not take place without an adequate representation of the case for the defence". This description of the general purpose of Art. 6(3)(c) has subsequently,in an unpublished decision of 7 May 1979 (Application N 8202/78 - X v Norway), been used by the Commission in its examination of a complaint invoking the legal aid clause of Art. 6 (3)(c). The applicant in that case had been refused legal aid for his trial at first instance. The Commission's finding that his complaint was manifestly ill-founded was based on the following considerations : "(T)he Court apparently refused to appoint a lawyer free of charge on the ground that the criminal proceedings against the applicant only concerned a minor offence. There is no indication, however, that the applicant was not himself able properly to defend his case withou t the assistance of legal counsel. It appears that he was given all opportunities of preparing his case, that he had a voluminous correspondence with the Court prior to the trial, and that he was present in person during the court proceedings to state his case. In these circumstances the Commission is satisfied that the trial took place with an adequate representation of the case for the defence, as envisaged by Art. 6 (3)(c) of the Convention,and that it was not necessary in the interests of justice for the Court to appoint a lawyer free of charge to represent the applicant before it. An examination of this complaint as it has been submitted does not therefore disclose any appearance of a violation of this provision. " ri5. The Commission's published case law concerning the legal aid clause provides little further guidance for the interpretatio n of the term "interests of justice" in Art. 6 (3)(c). Thus, when admitting a complaint under this clause in Application N 834/60 (Glaser v Austria, Collection of Decisions 10, 64, at page 70), the Commission noted that, prior to the hearing of his appeal by th e Court ofappeal, the applicant had taken steps to inform the authorities that his legal knowledge was not sufficient to allow him adequatel y to defend himself against the appeal lodged by the Public Prosecutor ; that, in spite of his request, he was not accorded legal assistance but was obliged himself to draft and submit the counter-memorial provided for in Art. 294 (2) of the Austrian Code of Criminal Procedure ; and that the Court of Appeal, when hearing the appeal in the presence of the Senior Public Prosecutor, considered th e

25 /7 8 applicant's case on the basis of submissions which, by being made by the applicant without professional iegal assistance, were "inevitably inadequate". In Application No 5871/72 the Commission, although dealing with a complaint invoking the legal aid clause, did not define this notion. Finally, in the Artico Case, the question whether the interests of justice required legal assistance was considered primarily in the light of domestic law and the domestic decision appointing counsel, but reference was also made (at para. 34 of the Court's judgment) to certain procedural tasks requiring legal assistance or representation : a qualified lawyer could not only have çlarified Mr Artico's written grounds of appeal but also have requested that the appeal be heard orally. 86. In its examination of the question whether, in th e circumstances of the present case, there was an "adequate representation of the case for the defence", in the sense of the above case-law, at the hearing of the applicant's appeal before the Federal Court, the Commission has noted that the applicant was granted legal aid for his trial at first instance. Such a grant was mandatory under Art. 140 (1) of the Code of Criminal Procedure because the trial took place before the Regional (and not the District) Court. The Commission further observes that the applicant was also provided with free legal assistance for the written appeal proceedings - a feature which distinguishes the present case from Application N 834/60 quoted above (para. 14). 87. As regards the oral appeal proceedings, it is not disputed between the parties that less than 109, of criminal appeals on points of law are heard orally by the Federal Court. The Federal Court's decision to hold a hearing was therefore not automatic but an indication that, in the Court's view, oral argument would serve the cause of justice. The question must then be asked whether it was sufficient for the accused to be entitled to appear in person at the hearing of his appeal or whether the interests of justice required that he be represented or assisted by counsel. 88. In determining this question the Commission sees no reason to distinguish between written and oral proceedings. If it is accepted - as in the present case - that the interests of justice required representation by counsel for the written proceedings, where the Prosecution was represented by the Public Prosecutor's Office at the Regional Court, then it would seem to follow that representation by counsel was also necessary at the oral hearing before the Federal Court, where the prosecution was represented by a Federal Attorney. It appears from the Federal Court's judgment that the main poin t at issue was the interpretation of Art. 146 of the Code of Criminal Procedure. The Commission finds that the applicant, even if he had been present in person at the hearing before the Federal Court, could not without the assistance of counsel have made a useful contribution to the discussion of this issue.