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You are here: BAILII >> Databases >> European Court of Human Rights >> LUEDICKE, BELKACEM AND KOÇ v. GERMANY (ARTICLE 50) - 6210/73;6877/75;7132/75 [1980] ECHR 3 (10 March 1980) URL: http://www.bailii.org/eu/cases/ECHR/1980/3.html Cite as: (1980) 2 EHRR 433, [1980] ECHR 3

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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 the relevant

provisions of the Rules of Court, as a Chamber composed of the

following judges:

Mr. G. WIARDA, President,

Mr. H. MOSLER,

Mrs. D. BINDSCHEDLER-ROBERT,

Mr. W. GANSHOF VAN DER MEERSCH,

replacing the late Mrs. H. PEDERSEN,

Mr. D. EVRIGENIS,

Mr. P.-H. TEITGEN,

Mr. G. LAGERGREN,

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

Registrar,

Having deliberated in private on 23 October 1979 and on

26 February 1980,

Delivers the following judgment, which was adopted on the

last-mentioned date, on the application of Article 50 (art. 50)

of the Convention in the present case :

PROCEDURE AND FACTS

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

in October 1977, firstly by the Government of the Federal Republic of

Germany ("the Government") and then by 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, a United Kingdom citizen,

Mr. Mohammed Belkacem, an Algerian citizen, and Mr. Arif Koç, a

Turkish citizen. The Commission ordered the joinder of the

applications on 4 October 1976. The applicants claimed to be victims

of a violation of Article 6 par. 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.

2. By judgment of 28 November 1978, the Court found that there had

been breach of Article 6 par. 3 (e) (art. 6-3-e) and held that

there was no necessity to examine the case under Article 14

(art. 14) (points 2 and 3 of the operative provisions and

paragraphs 48-50 and 53 of the reasons. Series A no. 29,

pp. 23 and 20-21).

The Court also decided that the Federal Republic of Germany must

reimburse Mr. Luedicke for the interpretation costs that he had

paid. It reserved the question of the application of Article 50

(art. 50) as regards the applicants' other claims and invited those

appearing before the Court to notify it, within three months from the

delivery of the judgment, of any settlement at which the Government

and the applicants might arrive in connection therewith; the further

procedure on this question was reserved (point 5 of the operative

provisions and paragraph 57 of the reasons, ibid., p. 23).

3. On 23 February 1979, the Agent of the Government furnished a

report on her negotiations with the representatives of the three

applicants and requested a three months' extension of the

time-limit; this was granted by the President on 1 March.

4. As she had not received in due time the written proof she

considered necessary, the Agent of the Government submitted on

5 June an application for a further extension until 20 June.

The President consented thereto on 8 June.

5. Supplementary observations by the Government were filed at the

registry on 20 June. They may be summarised as follows.

In the case of Mr. Luedicke, the Legal Aid Section of the British

Army of the Rhine had confirmed, in a letter of 26 March 1979 to the

Minister of Justice for the Land of North Rhine-Westphalia, that,

with the recovery of the amount of the costs, the matter was

regarded as settled.

Concerning Mr. Belkacem, the Government assumed from the failure of

his lawyer, Mr. Moser, to reply to letters sent by the Agent on

27 February and 22 March that no reimbursement of costs was claimed.

They further noted that the applicant had had the benefit of legal

aid before the Commission and subsequently before the Court and that

his lawyer had received under this head the sum of FF 4,520.

The Government accordingly invited the Court, as regards

Mr. Luedicke and Mr. Belkacem, to strike the case out of its list

under Rule 47 par. 2 of the Rules of Court.

As for Mr. Koç, the only outstanding matters were the fees which his

lawyer, Mr. Pawlik, might charge him under the terms of their

contract, these being fees whose reimbursement he could then claim

under Article 50 (art. 50). In this connection, Mr. Pawlik put

forward the figures of DM 4,833.60 for the proceedings before the

Convention institutions and DM 356.35 for the constitutional complaint

of 1 July 1975 (Series A no. 29, pp. 11-12, par. 26); Mr. Koç

had made an advance payment of DM 670 in respect of these

fees. The Government found the first figure excessive: they

maintained that account should be taken solely of the costs

calculated in accordance with the Federal Scale of Lawyers' Fees

(Bundesgebührenordnung für Rechtsanwälte, hereinafter referred to as

BRAGO), which they assessed at DM 1,717.20. The fees concerning the

proceedings before the Federal Constitutional Court were evaluated

by the Government - "after a slight correction" - at DM 347.10,

the following observation being added:

"The Federal Government and the Minister of Justice for the Land of

North Rhine-Westphalia, who is competent in the matter, are prepared

to recognise this amount as a necessary personal expense of the

applicant and to reimburse it to him as compensation under Article 50

(art. 50) of the Convention."

However, the Government pointed out that they did not know the

applicant's address and entertained a few doubts about the validity

of the power of attorney submitted by Mr. Pawlik. They had therefore

offered him payment into his hands of the two amounts mentioned

above subject to the following conditions:

- Mr. Pawlik would declare in writing that he personally assumed

liability towards his client for any claims concerning the

application and the earlier proceedings and that he released both

the Federal Republic of Germany and the Land of North

Rhine-Westphalia from any such liability;

- Mr. Pawlik would further undertake that, should he trace or be

contracted by the applicant, he would refund to the latter, without

raising the defence of statutory limitation, the advance payment

made in respect of his fees.

6. On 11 July 1979, the Government informed the Court that

Mr. Pawlik had accepted their offer; they accordingly requested the

Court to strike the case out of its list as regards Mr. Koç.

7. On 13 September, the President of the Chamber invited the

Commission's Delegates to submit not later than 10 October their

observations - of which notice had been given in a letter of 27 July -

on the possible striking of the case out of the list.

8. In a memorandum filed at the registry on 10 October, the

Delegates indicated that they would agree to such a course as far as

Mr. Luedicke and Mr. Koç were concerned.

As for Mr. Belkacem, the Delegates stated that, by letter of

29 September, his lawyer had claimed, in respect of the proceedings

before the Convention institutions, additional fees of DM 2,171.33:

the lawyer considered that "the time during which he had been

engaged on the case, the work done and the importance of the

matter" justified the award of the full costs provided for in both

sub-paragraph 1 and sub-paragraph 2 of Article 118 par. 1 of BRAGO.

The Delegates left to the Court's discretion the assessment of the

amount to be paid to the applicant.

9. On 12 October, the President of the Chamber invited the Agent of

the Government to file not later than 5 November her observations on

the Delegates' memorandum.

10. In a letter dated 16 October, the Agent of the Government stated

that she had rejected the claims made by Mr. Belkacem's lawyer but had

offered to pay to him the difference between the FF 922 allowed by the

Council of Europe for subsistence expenses and the DM 590 claimed by

Mr. Moser, together with value added tax of 6 per cent. She added

that, having met with a refusal, she would make no further attempts

to arrive at a friendly settlement and requested the Court to rule

on the matter by determining the amount and the basis of computation

of the lawyer's fees.

11. On 17 October, the Secretary to the Commission transmitted to the

Court a copy of a letter dated 2 October from the headquarters of the

United Kingdom Land Forces confirming that the Luedicke case was

regarded as settled.

12. In view of the concurring statements of the Agent of the

Government and of the Delegates of the Commission (see paragraphs 5,

6, 8 and 10 above), there is no call to continue the written

procedure or to hold hearings.

AS TO THE LAW

I. THE REQUEST FOR STRIKING OUT OF THE LIST AS REGARDS

MR. LUEDICKE AND MR. KOÇ

13. The Court observes that since its judgment of 28 November 1978

it has been informed of agreements reached between the Federal

Republic of Germany and the respective representatives of

Mr. Luedicke and Mr. Koç (see paragraphs 5, 6 and 11 above).

As required by Rule 50 par. 5 of its Rules, the Court has verified the

"equitable nature" of these agreements and, having regard to the

opinion expressed by the Commission's Delegates (see paragraph 8

above), it entertains no doubts on the matter. Accordingly, striking

the case out of the list proves to be justified as regards these two

applicants (see, mutatis mutandis, Rule 47 par. 2 of the Rules of

Court).

II. THE REQUEST MADE IN MR. BELKACEM'S NAME FOR REIMBURSEMENT OF

COSTS

14. No issue arises concerning the interpretation costs which

Mr. Belkacem was ordered to pay or the costs incurred in the

exercise of the domestic remedies.

The relevant Berlin authorities had suspended recovery of the

interpretation costs pending clarification by the Court of the

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

(Series A no. 29, p. 10, par. 23). On 28 February 1979, the

Government informed the Court that the cancellation of this claim

for costs had been directed on 15 January by the President of the

Berlin-Tiergarten District Court (Amtsgericht) who had advised

Mr. Moser accordingly.

Reimbursement of the costs referable to the domestic remedies has not

been claimed by the applicant.

15. What remain are the additional fees of DM 2,171.33 claimed by

Mr. Belkacem's lawyer.

Mr. Belkacem had the benefit of free legal aid before the Commission

and then, after reference of the case to the Court, in his relations

with the Delegates (addendum to the Commission's Rules of Procedure)

and he does not maintain that he paid or is liable to pay to his

lawyer additional fees for which he might seek reimbursement.

It follows that, in this respect, Mr. Belkacem has borne no costs

himself and has suffered no loss capable of being compensated under

Article 50 (art. 50) of the Convention.

In the circumstances it is Mr. Belkacem alone who has the status of

"injured party" for the purposes of Article 50 (art. 50). Mr. Moser

cannot rely on Article 50 (art. 50) to seek just satisfaction on his

own account; besides, he accepted of his own free will the conditions,

including the scale of fees, applicable to the legal aid granted to

his client.

Should any point be taken as to the dangers accompanying too modest a

remuneration of lawyers, in particular the risk that they may

hesitate to act for certain applicants, the Court would observe that

this is a problem lying within the competence of the organs of the

Council of Europe. Under Article 58 (art. 58) of the Convention,

it is for the Council to provide the Commission with funds to cover

its expenses which should include such amounts as may be necessary for

the payment of adequate fees to lawyers acting under the legal aid

scheme.

16. Accordingly, the request made in Mr. Belkacem's name is not

well-founded.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Decides to strike the case out of its list as regards the

applicants Luedicke and Koç;

2. Rejects the request made in the name of the applicant Belkacem.

Done in English and in French, the French text being authentic,

at the Human Rights Building, Strasbourg, this tenth day of March,

one thousand nine hundred and eighty.

For the President

Signed: Léon LIESCH

Judge

Signed: Marc-André EISSEN

Registrar