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You are here: BAILII >> Databases >> European Court of Human Rights >> LUEDICKE, BELKACEM AND KOÇ v. GERMANY - 6210/73;6877/75;7132/75 [1978] ECHR 5 (28 November 1978) URL: http://www.bailii.org/eu/cases/ECHR/1978/5.html Cite as: (1980) 2 EHRR 149, [1978] ECHR 5

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In the case of Luedicke, Belkacem and Koç,

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and Rule 21 of the

Rules of Court, as a Chamber composed of the following judges:

Mr. G. WIARDA, President,

Mr. H. MOSLER,

Mrs. H. PEDERSEN,

Mrs. D. BINDSCHEDLER-ROBERT,

Mr. D. EVRIGENIS,

Mr. P.-H. TEITGEN,

Mr. G. LAGERGREN,

and Mr. M.-A. EISSEN, Registrar, and Mr. H. PETZOLD, Deputy Registrar,

Having deliberated in private on 26 May and 23 October 1978,

Delivers the following judgment, which was adopted on the

last-mentioned date:

PROCEDURE

1. The case of Luedicke, Belkacem and Koç was referred to the Court

by the Government of the Federal Republic of Germany ("the

Government") and the European Commission of Human Rights ("the

Commission"). The case originated in three applications against the

Federal Republic of Germany lodged with the Commission by

Mr. Gerhard W. Luedicke, Mr. Mohammed Belkacem and Mr. Arif Koç in

1973, 1974 and 1975 respectively. The Commission ordered the joinder

of these three applications on 4 October 1976.

2. Both the application of the Government, which referred to

Article 48 (art. 48) of the Convention, and the request of the

Commission, which relied on Articles 44 and 48, sub-paragraph (a)

(art. 44, art. 48-a), and to which was attached the report

provided for under Article 31 (art. 31), were lodged with the registry

of the Court within the period of three months laid down in

Articles 32 para. 1 and 47 ((art. 32-1, art. 47). The application was

lodged on 1 October 1977, the request on 10 October. Their purpose is

to obtain a decision from the Court as to whether or not the facts of

the case disclose a breach by the respondent State of its obligations

under Articles 6 para. 3 (e) and 14 (art. 6-3-e, art. 14) of the

Convention.

3. On 5 October, the President of the Court drew by lot, in the

presence of the Registrar, the names of five of the seven judges

called upon to sit as members of the Chamber; Mr. H. Mosler, the

elected judge of German nationality, and Mr. G. Balladore Pallieri,

the President of the Court, were ex officio members under Article 43

of the Convention (art. 43) and Rule 21 para. 3 (b) of the Rules of Court

respectively. The five judges thus designated were Mr. J. Cremona,

Mrs. H. Pedersen, Mr. D. Evrigenis, Mr. P.-H. Teitgen and

Mr. G. Lagergren (Article 43 in fine of the Convention and Rule 21 para. 4)

(art. 43). Mr. Balladore Pallieri assumed the office of

President of the Chamber in accordance with Rule 21 para. 5. Mr. Cremona,

who was subsequently prevented from taking part in the consideration

of the case, was replaced by the first substitute judge,

Mrs. Bindschedler-Robert.

On 21 November, Mr. Balladore Pallieri, acting in pursuance of

Rule 24 para. 4, granted himself exemption from sitting on the case. In

accordance with Rule 21 paras. 3 (b) and 5, Mr. Wiarda, the Vice-President

of the Court, became a full member of the Chamber and assumed the

office of President of the Chamber.

4. The President of the Chamber ascertained, through the Registrar,

the views of the Agent of the Government and the Delegates of the

Commission regarding the procedure to be followed. By an Order

of 17 October, the President of the Chamber decided that the

Government should file a memorial within a time-limit expiring

on 31 January 1978 and that the Delegates should be entitled to file a

memorial in reply within two months of receipt of the Government's

memorial.

5. The Government filed their memorial on 30 January 1978. The

Secretary to the Commission advised the Deputy Registrar on 17 April

that the Delegates had decided not to file a memorial in reply;

on 8 May, he communicated to the Registrar a note containing "the

applicants' observations on the question of the application of

Article 50 (art. 50) of the Convention" and Mr. Koç's observations on

the Government's suggestion that his case be severed from the other

two and be struck out of the Court's list.

6. After consulting, through the Deputy Registrar, the Agent of the

Government and the Delegates of the Commission, the President of the

Chamber decided by an Order of 11 March that the oral hearings should

open on 25 May.

7. The Chamber held a preparatory meeting on 25 May, immediately

before the opening of the hearings. At that meeting the Chamber,

granting a request presented by the Government, decided that their

Agent and counsel could plead in German at the hearings, the

Government undertaking, inter alia, responsibility for the

interpretation into French or English of their oral arguments or

statements (Rule 27 para. 2). At the same time, the Chamber took note of

the intention of the Commission's Delegates to be assisted during the

oral proceedings by Mr. Pawlik, the lawyer of one of the applicants;

it also authorised Mr. Pawlik to speak in German (Rules 29 para. 1 in fine

and 27 para. 3).

8. The oral hearings took place in public at the Human Rights

Building, Strasbourg, on 25 May.

There appeared before the Court:

- for the Government:

Mrs. I. Maier, Ministerialdirigentin at the Federal Ministry of

Justice, Agent,

Mr. H. Stöcker, Regierungsdirektor at the Federal Ministry of

Justice,

Mr. K. Miebach, Richter am Landgericht, Federal Ministry of Justice,

Advisers;

- for the Commission:

Mr. F. Ermacora, Principal Delegate,

Mr. S. Trechsel, Delegate,

Mr. G. Pawlik, lawyer for Mr. Koç, assisting the Delegates under

Rule 29 para. 1, second sentence.

The Court heard addresses by Mrs. Maier for the Government and by

Mr. Ermacora, Mr. Trechsel and Mr. Pawlik for the Commission, as well

as their replies to questions put by several judges.

9. On 10 July, the Agent of the Government supplemented in writing

her reply to one of the questions that had been put to her.

On 17 July, the Commission produced to the Court certain documents

referred to by the Principal Delegate at the hearings; these documents

were the subject of a letter, received on 16 August, from the Agent of

the Government.

AS TO THE FACTS

10. At the time when they introduced their applications with the

Commission, Mr. Gerhard W. Luedicke, Mr. Mohammed Belkacem and

Mr. Arif Koç were resident in the Federal Republic of Germany.

The three applicants were charged before the German courts with the

commission of various criminal offences. Since they were not

sufficiently familiar with the language of the country, they were

assisted by an interpreter in accordance with German law. After

conviction, they were ordered, amongst other things, to pay the costs

of the proceedings, including the interpretation costs. They consider

that the inclusion of this latter item is contrary to, inter alia,

Article 6 para. 3 (e) (art. 6-3-e) of the Convention.

I. The domestic law

11. In criminal proceedings, the courts must use the services of an

interpreter whenever the accused is not conversant with German.

The first sentence of section 185 para. 1 of the Constitution of the

Courts Act (Gerichtsverfassungsgesetz) provides as follows:

"If the proceedings before the court involve the participation of

persons who do not have command of the German language, an interpreter

shall be employed."

Pursuant to this provision, the assistance of an interpreter is made

available as a matter of course to an accused - whatever his

nationality - who does not understand or speak the German language.

The same rule is applicable to the examination of witnesses who do not

have command of the German language.

The obligation to employ an interpreter is, however, subject to one

exception, namely when all the participants are familiar with the

foreign language (section 185 para. 2 of the Constitution of the Courts

Act).

12. Interpretation costs are part of the costs of the proceedings

which, according to Article 464 (a) para. 1, first sentence, of the Code

of Criminal Procedure (Strafprozeßordnung), are made up of "the fees

(Gebühren) and expenses of the Treasury". The latter are listed in the

Court Costs Act (Gerichtskostengesetz) which in turn refers to the

Witnesses and Experts (Expenses) Act (Gesetz über die Entschädigung

von Zeugen und Sachverständigen). Section 17 para. 2 of the last-mentioned

Act provides that "for the purposes of compensation, interpreters

shall be treated as experts".

According to Article 465 para. 1, first sentence, of the Code of

Criminal Procedure:

"The accused shall bear the costs of such part of the proceedings as

concerned the act that gave rise to the conviction ..."

Under this provision, the question of payment of the costs of the

proceedings arises only after there has been a final ruling on the

guilt of the accused; an accused person may never be required to make

any advance payment on these costs. In the event of acquittal or of

proceedings being discontinued, the Treasury in principle bears the

costs. On the other hand, if the individual concerned is convicted, he

has to pay the costs, but only such proportion thereof as relates to

the criminal charges upheld by the court.

13. As concerns interpretation costs in particular,

Article 6 para. 3 (e) (art. 6-3-e) of the Convention, which forms an

integral part of the domestic law, specifies that "everyone charged

with a criminal offence has the (right) ... to have the free

assistance of an interpreter if he cannot understand or speak the

language used in court". This text has not been interpreted and

applied by the German courts in a uniform way. Certain courts read it

as embodying an obligation for the Treasury to bear the costs in

question for all time and in all cases; other courts, including some

higher courts, consider on the contrary that while Article 6 para. 3 (e)

(art. 6-3-e) - like the Code of Criminal Procedure - exempts an

accused (that is, a person "charged with a criminal offence") from

paying in advance for the expenses incurred by the use of an

interpreter, it does not prohibit such expenses being awarded against

a convicted person.

14. Interpretation costs are assessed in accordance with a scale

fixed by law and not by the interpreters themselves; the assessment is

made by a court official (Kostenbeamter) when the overall costs of the

proceedings are determined.

II. Facts relating to the individual applicants

1. Mr. Luedicke

15. Mr. Gerhard W. Luedicke is a citizen of the United Kingdom and

was, at the time of his application to the Commission, a member of the

British Forces stationed in the Federal Republic of Germany.

16. On 5 May 1972, the Bielefeld District Court (Amtsgericht)

convicted him of a road traffic offence. He was fined DM 900 and

ordered to pay the costs of the proceedings.

On 2 June 1972, after the judgment had become final, the public

prosecutor's department (Staatsanwaltschaft) attached to the Bielefeld

Regional Court (Landgericht) served Mr. Luedicke with a notice to pay

the sum of DM 1,330.90, made up of the fine of DM 900 and the fees

(Gebühren) due in respect of the criminal proceedings (DM 90) and the

withdrawal of his driving licence (DM 30), together with police costs

(DM 85.50) and interpretation costs (DM 225.40). DM 154.60 of the last

item related to the oral hearing.

17. On 30 June 1972, the applicant, represented by the Command Legal

Aid Section at Bielefeld, entered an appeal (Erinnerung) against this

assessment of costs; he maintained that the assessment was contrary to

Article 6 para. 3 (e) (art. 6-3-e) of the Convention in so far as it

concerned payment of the interpretation costs.

Following the refusal of the auditor (Bezirksrevisor) attached to

the Bielefeld Regional Court to modify the assessment, the matter was

referred to the Bielefeld District Court which dismissed the appeal on

31 August 1972. The District Court stated in particular:

"The object of Article 6 (art. 6) of the Convention ... is to

guarantee certain fundamental rights to everyone faced with criminal

proceedings. In Germany, this Article (art. 6) applies to proceedings

brought against foreigners as well as to those brought against German

nationals. It is not the aim of the provision to place foreigners in a

more favourable position than German nationals. This, however, would

be the case if a foreign convicted person was not required to pay the

interpretation costs. For example, under the German law of procedure

and costs, a deaf-and-dumb convicted person against whom proceedings

cannot be taken without a special interpreter must pay the costs of

interpretation. So must also a German convicted person in whose trial

non-German-speaking witnesses have to be examined with the assistance

of an interpreter. Under the rules of German criminal procedure every

person finally convicted must himself bear all the costs of the

proceedings, including ... the interpretation expenses. This

obligation is not contrary to Article 6 (art. 6) ... which does not

forbid awarding the costs of the proceedings against a person

convicted of an offence.

Under German procedural law, however, no accused person need make

advance payment for the costs of interpreters ... This would appear

not to be the case in other signatory States of the Convention as

otherwise it would be difficult to understand the wording of

Article 6 para. 3 (e) (art. 6-3-e).

The Court thus interprets Article 6 para. 3 (e) (art. 6-3-e) ... as a

provisional exemption from paying the interpretation costs ..."

18. On 8 February 1973, following an "immediate appeal" (sofortige

Beschwerde) by Mr. Luedicke, the Bielefeld Regional Court confirmed the

impugned decision, relying, inter alia, on the "correctness of the

reasoning" contained in that decision.

On 4 May 1973, the applicant paid the costs of the proceedings,

including the interpretation costs.

2. Mr. Belkacem

19. Mr. Mohammed Belkacem is an Algerian citizen, born in 1954.

After completing his apprenticeship as a locksmith in Algeria, he

rejoined his father in the Federal Republic of Germany where he

followed various occupations.

20. In December 1973, he was involved in a dispute in a Berlin

night-club during which another client lost his coat. He was charged

with robbery and with assault occasioning bodily harm; his case was

tried by the Berlin-Tiergarten Juvenile Court (Jugendschöffengericht).

On 8 April 1974, the Juvenile Court convicted him of assault

occasioning bodily harm. He was sentenced to four weeks' imprisonment

(Dauerarrest) - a sentence deemed to have been served during his

detention on remand - and to a fine of DM 500, and he was ordered to

pay the costs of the proceedings.

21. On 10 April 1974, Mr. Belkacem filed an "immediate appeal"

against the order as to costs insofar as the interpretation costs

had been included in the award. He submitted that Article 6 para. 3 (e)

(art. 6-3-e) of the Convention granted him exemption from payment of

the costs in question.

On 13 June 1974, the Berlin Regional Court dismissed the appeal.

The Regional Court reasoned that, since no assessment of costs had yet

been made, there had been no decision capable of being challenged on

appeal. The Regional Court further stated that the Juvenile Court

would have acted improperly if it had omitted the interpretation costs

from its decision on the costs of the proceedings - the former costs,

according to Article 464 (a) of the Code of Criminal Procedure read in

conjunction with the Court Costs Act and the Witnesses and Experts

(Expenses) Act, constituting a component of the latter costs.

Furthermore, it was added, Article 6 para. 3 (e) (art. 6-3-e) of the

Convention did not prohibit a convicted person being made to bear

interpretation costs.

22. On 11 April 1975, the Berlin-Tiergarten District Court served

Mr. Belkacem with a notice to pay costs amounting to DM 665.63,

including DM 321.95 for interpretation costs. The latter sum

comprised the expenses incurred in respect of Mr. Belkacem's

appearance before the judge on 17 December 1973 (DM 33.25), the review

on 14 January 1974 of his detention on remand (Haftprüfungstermin)

(DM 67.60), the translation of the indictment (DM 90.20) and the trial

hearing on 8 April 1974 (DM 130.90).

The applicant unsuccessfully challenged the inclusion of interpretation

costs in this assessment of the costs. On 29 May 1975, his appeal was

dismissed by the District Court which held, inter alia, that

Article 6 para. 3 (e) (art. 6-3-e) of the Convention did not prevent

interpretation costs being awarded against a convicted person.

Mr. Belkacem then lodged an "immediate appeal" which was rejected by

the Berlin Regional Court on 2 October 1975. As far as Article 6 para. 3 (e)

(art. 6-3-e) was concerned, the Regional Court referred to its

decision of 13 June 1974 and continued:

"In the light of the context of Article 6 para. 3 (art. 6-3) ..., which

lays down fundamental guarantees for a fair trial, the Court ...

interprets sub-paragraph (e) (art. 6-3-e) to mean that the assistance

of an interpreter must not be made dependent on the accused's making

any advance payment. This sub-paragraph guarantees a court hearing for

a foreigner who is ignorant of the language, regardless of his

capacity to pay.

Who finally has to bear the costs of interpretation after the

proceedings have terminated is a different question. That after

conviction this may be the accused is not excluded by

Article 6 para. 3 (e) (art. 6-3-e) ..."

23. On 5 May 1977, following a request by Mr. Belkacem, the Berlin

Justizkasse allowed him to defer payment "until the decision of the

Commission of Human Rights be known". From that time, he has not been

required to pay the costs in question since, at the request of the

Government, the relevant Berlin authorities (Landesjustizverwaltung)

have suspended recovery awaiting the judgment of this Court.

3. Mr. Koç

24. Mr. Arif Koç, a Turkish citizen born in 1940, has been employed

in the Federal Republic of Germany in various trades, including mining

and the construction industry. When he applied to the Commission, he

was living at Geilenkirchen-Waurichen. On 12 April 1976, he notified

the relevant authorities in Alsdorf, near Aachen, his last place of

residence in Germany, of his intention to return to Turkey.

25. On 6 December 1973, the Assize Court attached to the Regional

Court (Schwurgericht beim Landgericht) at Aachen convicted Mr. Koç of

causing grievous bodily harm. He was sentenced to a year's

imprisonment, but the balance of his sentence remaining after

allowance had been made for his detention on remand was commuted to a

period of probation. The court ordered the applicant to bear the costs

of the proceedings "with the exception, however, of the costs

occasioned by the assistance of the Turkish-language interpreter,

which costs are to be borne by the Treasury". Although taking notice

of the conflicting practice of the German courts in this connection,

the Assize Court held that the "free" assistance of an interpreter, as

guaranteed by Article 6 para. 3 (e) (art. 6-3-e) to every accused not

conversant with the language of the court, is to be understood as

being free once and for all time.

26. On an "immediate appeal" by the public prosecutor's department,

the Cologne Court of Appeal (Oberlandesgericht), in a fully reasoned

decision delivered on 5 June 1975, set aside the Assize Court's

judgment insofar as it related to the interpretation costs.

The Court of Appeal stated:

"On [its] wording, it is controversial whether (Article 6 para. 3 (e))

(art. 6-3-e) forbids a convicted person's being charged with the costs

of interpretation under the above-cited provisions relating to costs

or whether - in the case of criminal proceedings in German courts - it

merely means that the assistance of an interpreter may not be made

dependent on an advance payment by the accused. ...

.....

The object of the Convention is to secure human rights and

fundamental freedoms against arbitrary State action and to place them

under the protection of supranational law. ... It is not its purpose

to go further and alter the national legal systems ... The list of

procedural guarantees in Article 6 (art. 6) of the Convention shows

that the intention was to enshrine rights of the citizen and duties of

the State which ensure a fair trial. This obviously means that the

accused (or person charged) should be able to call for the assistance

of an interpreter if he does not understand or speak the language used

in court and that such assistance should be in no way dependent on the

question of costs. But it certainly does not mean that even a

convicted person may not have the costs of interpretation awarded

against him. A fair trial is guaranteed in this respect insofar as the

accused must be assisted by the interpreter he needs. The question

whether he may later be required to bear the costs is not of the same

order as the problem of guaranteeing human rights and fundamental

freedoms but, both in theoretical and practical terms, is of lesser

moment. It cannot be assumed that the Convention is intended to

provide a piecemeal solution of the question of costs in criminal

proceedings. Nor does the consideration that a foreigner should not

receive worse treatment in the matter of costs than a national,

dictate the conclusion that permanent exemption from costs is

necessarily implied by the object of the Convention ... The Convention

would not have come appreciably nearer to achieving its aim by

prohibiting a financial disadvantage of such a kind."

On 1 July 1975, Mr. Koç applied to the Federal Constitutional Court

(Bundesverfassungsgericht) which, eight days later, declined to hear

the application on the ground that it did not offer sufficient

prospects of success.

27. According to the payment vouchers (Kassenanweisungen), the fees

paid to the interpreter amounted to DM 311.50 for the hearing

on 4 December 1973, DM 510.50 for the hearing on 5 December and

DM 112.50 for the hearing on 6 December - making a total of DM 934.50.

28. Nevertheless, the applicant was not served with a notice to pay

the costs for which he was liable, including the interpretation costs,

since it was noted that he had a wife and four children to support,

that his income was modest and that there was thus no prospect of

recovering the costs. For these reasons, the competent court official,

acting in pursuance of Article 10 para. 1 of the Service Instructions of

28 February 1969 on Court Costs (Kostenverfügung), had decided of his

own motion on 23 October 1975 not to assess the costs. His decision

was not notified either to Mr. Koç or to Mr. Koç's lawyer.

A second decision to this effect was taken by the same official on

20 December 1977. This decision recorded that the applicant was living

in Turkey, that his address was unknown and that recovery of the

costs, being doomed to failure, should be waived. Mr. Koç's lawyer

discovered the existence of the decision in April 1978 when he sought

from the court a photocopy of the interpreter's payment vouchers.

29. Before the Court, the Agent of the Government, with the

agreement of the Minister of Justice for the Land of North-Rhine

Westphalia made the following declaration:

"... the compulsory collection of costs from the applicant Koç in

pursuance of the judgment of 6 December 1973 by the Assize Court

attached to the Aachen Regional Court, varied in part by the decision

of 5 June 1975 by the Cologne Court of Appeal, will not be carried out

in future; for the costs of such compulsory collection and the

administrative costs would be out of proportion to the sum owed."

The Agent specified that "the costs ... would not be collected even

if the applicant were to return to the Federal Republic of Germany".

PROCEEDINGS BEFORE THE COMMISSION

30. In their applications, lodged respectively on 23 July 1973,

20 December 1974 and 28 July 1975, Mr. Luedicke, Mr. Belkacem and

Mr. Koç claimed to be victims of a violation of Article 6 para. 3 (e)

(art. 6-3-e) of the Convention in that they had been ordered by the

German courts to bear interpretation costs.

Mr. Luedicke and Mr. Belkacem also alleged discrimination by reason

of the fact that a foreigner not speaking German was in a less

favourable position than a German person.

31. The Commission declared Mr. Luedicke's application admissible on

11 March 1976 and the applications of Mr. Belkacem and Mr. Koç

admissible on 4 October following.

In its report of 18 May 1977, the Commission expressed the opinion:

- unanimously, that the decisions concerning the interpreter's costs

in the applicants' cases were in breach of Article 6 para. 3 (e)

(art. 6-3-e) of the Convention;

- by twelve votes to one, that it was not necessary to pursue its

examination of the case under Article 14 (art. 14).

The report contains one separate opinion.

CONCLUDING SUBMISSIONS MADE TO THE COURT

32. In their memorial of 30 January 1978, the Government

- suggested that the Court, acting in pursuance of Rule 47 para. 2 of

the Rules of Court, strike the case out of its list insofar as the

applicant Koç was concerned;

- requested the Court to find that the Federal Republic of Germany

has not violated the Convention to the detriment of the applicants

Luedicke and Belkacem.

At the hearing on 25 May, the Government specified that this latter

request applied also to Mr. Koç if the Court did not comply with their

above-mentioned suggestion.

AS TO THE LAW

I. On the suggestion to sever Mr. Koç's case and to strike it out of

the list

33. In their application bringing the case before the Court, the

Government stated: "As far as the applicant Koç is concerned there

arises the further question whether he is a 'victim' within the

meaning of Article 25 para. 1 (art. 25-1), first sentence, of the

Convention since in his case the competent authority abstained from

recovering the court fees (including interpreter's fees) because there

was no prospect of success." They further stated that they reserved

the right to apply in due course for the case of Mr. Koç "to be dealt

with in separate proceedings and in accordance with the provisions of

Rule 47 para. 2 of the Rules of Court".

Thus, in their memorial, the Government suggested that the Court

sever the proceedings concerning Mr. Koç from the proceedings regarding

the other applicants and strike the case out of the list as far as

Mr. Koç was concerned. With the agreement of the Minister of Justice for

the Land of North-Rhine Westphalia, they declared that Mr. Koç would

not be asked to pay the costs even if he returned to the Federal

Republic of Germany, because "the costs of such compulsory collection

and the administrative costs would be out of proportion to the sum

owed". In their submission, in view of this change in the legal

situation to his advantage, there was no longer any interest for the

applicant in the action being pursued, especially since the point of

law raised by his application was also the subject-matter of the

proceedings regarding Mr. Luedicke and Mr. Belkacem.

Referring to the possible application of Article 50 (art. 50) of the

Convention, the Agent stressed at the hearing that, should the Court

rule against them, the Government would fully comply with their

obligations under the Convention without a further decision under

Article 50 (art. 50) being necessary. She specified that this

statement applied also to the necessary ancillary costs incurred by

Mr. Koç.

34. The Delegates advised the Court on 8 May 1978, that, acting on

instructions unanimously decided upon by the Commission, they were

opposed to the Government's suggestion. At the same time, they

communicated to the Court a note indicating, amongst other things,

that Mr. Koç took issue with the said suggestion. According to Mr. Koç,

his interest to have pursued the examination of his complaints

remained unchanged since "the effect of the decision of 5 June 1975 of

the Cologne Court of Appeal is being upheld".

At the hearing on 25 May, in reply to a question from the President

of the Chamber, the Principal Delegate at first stated that the

Commission accepted Mr. Koç's opinion. However, having heard the

above-mentioned statements by the Agent, he acknowledged that "there

may ... be good reasons for the Court not to continue its examination

of the case at the present stage": the Delegates considered that there

was no general interest militating in favour of pursuing such

examination and they also took into account the indications given by

the Agent with regard to the application of Article 50 (art. 50).

35. Consequently, the Court has to determine whether the conditions

required for severing Mr. Koç's case from the two others and for

striking it out of the list are fulfilled.

Under the terms of Rule 47 para. 1 of the Rules of Court, when the Party

which has brought the case before the Court notifies the Registrar of

its intention not to proceed with the case, the Court "shall, after

having obtained the opinion of the Commission, decide whether or not

it is appropriate to approve the discontinuance and accordingly to

strike the case out of its list". In this connection, the Court notes

that the Government - the sole Party in the present proceedings (see

Rule 1 para. (h)) - did not express a wish not to proceed with the case.

In fact, the Government's suggestion referred not to paragraph 1 but

to paragraph 2 of Rule 47. Paragraph 2 empowers the Court to strike

out of the list a case referred to it by the Commission, but only when

"informed of a friendly settlement, arrangement or other fact of a

kind to provide a solution of the matter". Since the instant case was

brought before it by both the Government and the Commission, the Court

- even if the Government's suggestion could be considered as a notice

of discontinuance - can strike the case out of the list as concerns

Mr. Koç only in the event of the conditions in paragraph 2 of Rule 47

being satisfied. The Court must therefore establish whether in

Mr. Koç's case there exists a friendly settlement, arrangement or

other fact of a kind to provide a solution of the matter.

36. The Court takes formal notice of the Government's declaration

that "the compulsory collection of costs from the applicant Koç in

pursuance of the judgment of 6 December 1973 by the Assize Court

attached to the Aachen Regional Court, varied in part by the decision

of 5 June 1975 by the Cologne Court of Appeal, will not be carried out

in future", "even if the applicant were to return to the Federal

Republic of Germany" (see paragraph 29 above). The Court likewise

takes note of what the Agent stated in connection with the possible

application of Article 50 (art. 50) of the Convention as concerns

Mr. Koç's necessary ancillary costs.

Nevertheless, the Government's declaration, being a unilateral act,

cannot in the Court's view amount to a "friendly settlement" or an

"arrangement" within the meaning of Rule 47 para. 2. Neither can it be

regarded as a "fact of a kind to provide a solution of the matter".

In point of fact, the waiver of recovery of the sums due by Mr. Koç is

not prompted by reasons deriving from Article 6 para. 3 (e) (art. 6-3-e)

of the Convention; the waiver results simply from the practical

difficulties and cost of recovery, as well as from consideration of

the applicant's family and financial situation. Furthermore, the

waiver of recovery does 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. The Government do not, by their above-mentioned

declaration, admit that the German law and its application to Mr. Koç

contravene Article 6 para. 3 (e) (art. 6-3-e). On the contrary, they

maintain that the law and its application comply with the Convention.

Since Mr. Koç has requested reimbursement of the ancillary costs

incurred by him in the present proceedings, the retention of his case

on the Court's list is also justified for the purposes of the possible

application of Article 50 (art. 50) in his respect.

Retaining the case in its entirety on the list will facilitate

providing the Government, who are seeking an interpretation of the

Convention by the Court, with an answer of the completeness they are

entitled to expect on account, notably, of the conflict of opinion as

to the meaning of the provisions in issue; as the Delegates of the

Commission rightly emphasised, this conflict lies at the root of the

whole case.

37. Consequently, the Court decides not to sever Mr. Koç's case from

the two others and not to strike it out of the list.

II. On the alleged violation of Article 6 para. 3 (e) (art. 6-3-e)

38. In the applicants' submission, the obligation to pay the

interpretation costs, as imposed on them by the Bielefeld and Berlin

Regional Courts and Cologne Court of Appeal, is in breach of

Article 6 para. 3 (e) (art. 6-3-e) of the Convention which provides:

"Everyone charged with a criminal offence has the following minimum

rights:

.....

(e) to have the free assistance of an interpreter if he cannot

understand or speak the language used in court."

In its report, the Commission expressed the unanimous opinion that

the decisions challenged by the applicants were in breach of

Article 6 para. 3 (e) (art. 6-3-e). The Commission takes this provision to

mean that every accused person who "cannot understand or speak the

language used in court" must be granted the free assistance of an

interpreter and may not have payment of the resulting costs

subsequently claimed back from him.

The Government contest the correctness of this opinion. They submit

that while Article 6 para. 3 (e) (art. 6-3-e) exempts the accused from

paying in advance for the expenses incurred by using an interpreter,

it does not prevent him from being made to bear such expenses once he

has been convicted.

39. For the purposes of interpreting Article 6 para. 3 (e) (art. 6-3-e),

the Court will be guided, as also were the Government and the

Commission, by Articles 31 to 33 of the Vienna Convention of

23 May 1969 on the Law of Treaties (see the Golder judgment of

21 February 1975, Series A no. 18, p. 14, para. 29). In order to decide

the issue arising in the present proceedings, the Court will therefore

seek to ascertain "the ordinary meaning to be given to the terms" of

Article 6 para. 3 (e) (art. 6-3-e) "in their context and in the light of

its object and purpose" (Article 31 para. 1 of the Vienna Convention).

40. The Court finds, as did the Commission, that the terms

"gratuitement"/"free" in Article 6 para. 3 (e) (art. 6-3-e) have in

themselves a clear and determinate meaning. In French, "gratuitement"

signifies "d'une manière gratuite, qu'on donne pour rien, sans

rétribution" (Littré, Dictionnaire de la langue française), "dont on

jouit sans payer" (Hatzfeld et Darmesteter, Dictionnaire général de la

langue française), "à titre gratuit, sans avoir rien à payer", the

opposite of "à titre onéreux" (Larousse, Dictionnaire de la langue

française), "d'une manière gratuite; sans rétribution, sans

contrepartie" (Robert, Dictionnaire alphabétique et analogique de la

langue française). Similarly, in English, "free" means "without

payment, gratuitous" (Shorter Oxford Dictionary), "not costing or

charging anything, given or furnished without cost or payment"

(Webster's Third New International Dictionary).

Consequently, the Court cannot but attribute to the terms

"gratuitement" and "free" the unqualified meaning they ordinarily have

in both of the Court's official languages: these terms denote neither

a conditional remission, nor a temporary exemption, nor a suspension,

but a once and for all exemption or exoneration. It nevertheless

remains to be determined whether, as the Government contend, the

context as well as the object and purpose of the provision in issue

negative the literal interpretation.

41. According to the Government, all the rights enumerated in

Article 6 para. 3 (art. 6-3) are concerned with criminal proceedings and

become devoid of substance once those proceedings, the fair conduct of

which they are to guarantee, have been terminated by a final and

binding judgment. The Government submitted that what are involved are

certain minimum rights which - in specifying the content of the right

to a fair trial as enshrined in Article 6 para. 1 (art. 6-1) - are granted

only to an accused ("everyone charged with a criminal offence", "tout

accusé"). The Government likewise place reliance on the presumption of

innocence, which is enunciated in Article 6 para. 2 (art. 6-2) and which

is rebutted on the final and binding conviction of the accused.

Their reasoning is that the various guarantees of a fair trial,

because they are intended to enable the accused to preserve the

presumption of innocence, lapse at the same time as that presumption.

In the Government's submission, the costs of the proceedings

constitute a consequence of the conviction and accordingly fall

entirely outside the ambit of Article 6 (art. 6).

42. The Court notes that, for the purpose of ensuring a fair trial,

paragraph 3 of Article 6 (art. 6-3) enumerates certain rights

("minimum rights"/"notamment") accorded to the accused (a person

"charged with a criminal offence"). Nonetheless, it does not thereby

follow, as far as sub-paragraph (e) is concerned, that the accused

person may be required to pay the interpretation costs once he has

been convicted. To read Article 6 para. 3 (e) (art. 6-3-e) as allowing the

domestic courts to make a convicted person bear these costs would

amount to limiting in time the benefit of the Article and in practice,

as was rightly emphasised by the Delegates of the Commission, to

denying that benefit to any accused person who is eventually

convicted. Such an interpretation would deprive Article 6 para. 3 (e)

(art. 6-3-e) of much of its effect, for it would leave in existence

the disadvantages that an accused who does not understand or speak the

language used in court suffers as compared with an accused who is

familiar with that language - these being the disadvantages that

Article 6 para. 3 (e) (art. 6-3-e) is specifically designed to attenuate.

Furthermore, it cannot be excluded that the obligation for a

convicted person to pay interpretation costs may have repercussions on

the exercise of his right to a fair trial as safeguarded by Article 6

(art. 6) (see the Golder judgment of 21 February 1975, Series A

no. 18, p 18, para. 36), even if, as in the Federal Republic of Germany,

an interpreter is appointed as a matter of course to assist every

accused person who is not conversant with the language of the court.

Making such an appointment admittedly eliminates in principle the

serious drawbacks that would arise were an accused to defend himself

in person in a language he did not master or fully master rather than

incurring additional costs. Nevertheless, as was pointed out by the

Delegates of the Commission, the risk remains that in some borderline

cases the appointment or not of an interpreter might depend on the

attitude taken by the accused, which might in turn be influenced by

the fear of financial consequences.

Hence, it would run counter not only to the ordinary meaning

of the terms "free"/"gratuitement" but also to the object and purpose

of Article 6 (art. 6), and in particular of paragraph 3 (e)

(art. 6-3-e) thereof, if this latter paragraph were to be reduced to

the guarantee of a right to provisional exemption from payment - not

preventing the domestic courts from making a convicted person bear the

interpretation costs -, since the right to a fair trial which

Article 6 (art. 6) seeks to safeguard would itself be adversely

affected.

43. The Government derive from other sub-paragraphs of Article 6 para. 3

(art. 6-3) certain further arguments which, they contend, support

their case.

They rely on sub-paragraph (c) (art. 6-3-c) which grants to everyone

charged with a criminal offence 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". The Government likewise invoke

sub-paragraph (d) (art. 6-3-d), according to which every accused has

the right "to examine or have examined witnesses against him and to

obtain the attendance and examination of witnesses on his behalf under

the same conditions as witnesses against him".

The Government maintain that the words "free"/"gratuitement"

employed in the two sub-paragraphs (c) and (e) (art. 6-3-c,

art. 6-3-e) must have the same meaning in both provisions.

In their submission, there is nothing to justify saying that in

sub-paragraph (c) (art. 6-3-c) these words permanently exempt the

accused, subsequent to his conviction, from having to pay for legal

assistance given in the circumstances specified in that sub-paragraph.

Furthermore, for the Government, the three sub-paragraphs (c), (d)

and (e) of Article 6 para. 3 (art. 6-3-c, art. 6-3-d, art. 6-3-e) are

distinguishable from the two preceding sub-paragraphs by reason of the

fact that financial consequences are entailed in the 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 (à

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 employée à 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 "employée à 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. Koç, 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. Koç) 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. Koç 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 Koç 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: Gérard J. WIARDA

President

Signed: Marc-André 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. Koç'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. Koç complained in his application is thus eliminated.

However, Mr. Koç'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. Koç 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. Koç'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.