X. v. THE FEDERAL REPUBLIC OF GERMANY



I.   THE FACTS

The facts as originally submitted by the applicant:

The applicant is a German barrister and notary (Rechtsanwalt und Notar)
practising in H. He is represented by the Action Committee of German
Barristers (Aktionsgemeinschaft der Deutschen Rechtsanwälte), a
registered association at H., of which he is a member of the executive
board. He is furthermore represented and supported by about 25 other
barristers who have submitted powers-of-attorney and stated that they
fully agree with the arguments expounded by the applicant. The chairman
of an association for the protection of individual rights (Verein gegen
parlamentarischen und bürokratischen Missbrauch e.V.) has likewise
submitted a power of attorney.

By decision of .. February 1970 the Regional Court (Landgericht) at
Detmold ordered that the applicant should represent, in a divorce case,
the defendant who had been granted legal aid (Armenrecht). The
applicant had not been asked by the Court whether he was willing to act
as a legal aid counsel. He appealed (Beschwerde) against the order of
.. February 1970 alleging that the instruction to represent a poor
party against his (the lawyer's) will violated Articles 3, 12 and 14
of the Basic Law (Grundgesetz). By decision of .. May 1970 the Court
of Appeal (Oberlandesgericht) at Hamm rejected this appeal.

The Court found that the obligation of barristers to represent poor
parties as provided for in Section 48, paragraph 2 of the Federal
Barristers' Act (Bundesrechtsanwaltsordnung = BRAO) was a legitimate
restriction of the right to exercise a profession (Berufsausübung) as
guaranteed by Article 12, paragraph 1, of the Basic Law, since this
obligation is in the interest of the public and does not unreasonably
burden the applicant.

Furthermore, the Court denied that this was a violation of Article 14
of the Basic Law which guarantees the rights of ownership and
inheritance (Eigentumsgarantie). The Court stated that, although it is
true that a barrister, who is ordered by a court to represent a poor
party, can only claim a part of the normal fees from the public
treasury (Sections 121, 123 of the Federal Act on Barristers' Fees =
Bundesrechtsanwaltsgebührenordnung), this does not constitute an act
of expropriation (Enteignung oder enteignungsgleicher Eingriff). The
reason given was that the obligation of barristers to represent poor
parties already existed before the applicant was admitted to the Bar
and, consequently, the legal position which he acquired by admission
was restricted from the beginning.

Finally, the Court stated that the principle that all persons shall be
equal before the law, as expressed in Article 3 of the Basic Law
(Grundsatz der Gleichbehandlung), was not violated since Article 3 only
forbids arbitrary differentiations. The Court found that, although it
is true that there are other professions which do not have an
obligation similar to the obligation of barristers to represent poor
parties without receiving adequate consideration from the public
treasury, this obligation is justified in the interest of the public.
The Court pointed out that, on the other hand, barristers profit from
the fact that in most court proceedings the parties have to be
represented by legal counsel. It therefore considered it to be
justified that barristers carry part of the burden resulting from the
need to grant legal aid to poor persons.

The applicant lodged a constitutional appeal (Verfassungsbeschwerde)
against the Appeal Court's decision. On .. July 1970 a group of three
judges of the Federal Constitutional Court (Bundesverfassungsgericht)
rejected the appeal in accordance with Section 93 a, paragraph 3, of
the Act concerning the Federal Constitutional Court (Gesetz über das
BverfG) as being clearly ill-founded. The applicant points out that,
if he had refused to act as legal aid counsel he would have risked
disciplinary proceedings leading to a professional punishment in the
form of a warning, a reprimand, a fine of up to 10,000 DM or even
exclusion from the Bar under Sections 48, 49, 113, 114 BRAO.

COMPLAINTS

The applicant alleges that the obligation of barristers to represent
poor clients without adequate consideration amounts to forced or
compulsory labour and violates Article 4 (2) and 14 of the Convention
as well as Article 1 of Protocol No. 1 in conjunction with Article 14
of the Convention.

Furthermore, he alleges that Sections 48, 114 BRAO, which provide for
a sanction affecting professionally those barristers who refuse to act
as legal aid counsels, violate Article 11 of the Convention.

I.   Arguments of the applicant concerning the alleged violation of
Article 4, paragraph 2, and Article 14 of the Convention.

In this respect the applicant refers to the Commission's decision
concerning application No. 1468/63 (Iversen v. Norway, Yearbook, Vol.
VII, p. 278) in which four members of the Commission expressed the
opinion that, following the provisions and application of ILO
Conventions and Resolutions on Forced Labour, the elements of forced
or compulsory labour are first, that the work or service is performed
by the worker against his will and, secondly, that the requirements
that the work or service be performed is unjust or oppressive or the
work or service involves avoidable hardship.

The applicant is of the opinion that these elements are to be found in
his case since barristers are forced to represent poor clients under
the threat of severe punishment affecting their profession, while in
such cases they do not receive an adequate consideration for their
services. For example, in criminal proceedings the fees paid by the
public treasury to the official defence counsel (Pflichtverteidiger)
amount to only a quarter of the fees which he could claim from the
client himself, if the latter were solvent. The State has enough money
to cover the full fees of barristers since it is even supporting the
political parties by granting them generous financial subsidies.

Therefore the State deliberately abuses its power by forcing
barristers, through threat of professional sanctions, to give their
services in legal aid cases without receiving adequate consideration.
It thus partly divests itself, to the detriment of the legal
profession, of a burden which ought to be carried by the public and not
by a single professional group. In fact no other professional group in
Germany is obliged to give their services to the poor without adequate
consideration. Judges or other officials of the judiciary are likewise
not supposed to do extra work in legal aid cases without adequate
compensation. For the last mentioned reasons the obligation of
barristers to represent poor clients cannot be considered as a normal
civic obligation within the meaning of Article 4, paragraph (3) (d),
of the Convention.

The applicant points out that the present situation also causes
prejudice to those who need legal aid, because a barrister appointed
to defend the case of a poor party will naturally not put much effort
into a difficult and perhaps long lawsuit if he cannot expect to be
paid adequately for his services.

Summing up, it can be concluded that the obligation of barristers to
represent poor clients is, at least in most cases and especially in the
present one, imposed on them against their will; it is furthermore
unjust and oppressive as a barrister has to face a punishment if he
refused to carry out his task. The obligation consequently amounts to
forced or compulsory labour. This violation of Article 4, paragraph
(2), of the Convention could easily be remedied by the respondent
Government if it provided the necessary financial means.

II.  Violation of Article 1 of Protocol No. 1 in conjunction with
Article 14 of the Convention.

A barrister's office is a private enterprise and as such constitutes
a property right within the meaning of Article 1 of Protocol No. 1
(Recht am eingerichteten und ausgeübten Betrieb; the applicant refers
in this respect to Schorn, Die Menschenrechtskonvention, 1965, p. 426).
This property right is diminished in each case where a barrister has
to represent a poor party without receiving adequate consideration. The
services of a barrister given in civil aid cases enrich the respondent
Government without just cause, as it is their proper obligation to
provide legal aid to the poor and not the obligation of a single
professional group. Of course it is in the public interest that
barristers also represent the poor parties, but this public interest
does not justify lawyers being inadequately paid for their services,
taking into consideration that the respondent Government has sufficient
financial means and furthermore that, according to the Emergency
Assistance Law (Bundesleistungsgesetz, BGBI I, 1961, 1769, Sections 20
et seq.) members of all other professions have a claim for adequate
compensation where they have to perform services.

III. Violation of Article 11 of the Convention

The Action Committee of German Barristers was founded as a kind of
trade union for the protection of the interests of the legal
profession. One of its aims is the abolition of the obligation of
barristers to represent poor parties without adequate payment. The
executive board has in vain requested the respondent Government to
change the present situation. The most effective way to push through
this well-founded request would now be a strike. However no barrister
would dare to go on strike as he would consequently face a professional
sanction under Sections 48, 49, 114 BRAO. It follows that these
provisions restrict the Action Committee in the exercise of its rights
and therefore violate Article 11 (1) of the Convention since the
restriction is not justified for any of the reasons listed in paragraph
(2) of this Article.

The applicant has, inter alia, submitted two articles which he
published in German legal periodicals and in which he also expounded
his arguments concerning the legality of the obligation of barristers
to represent poor clients without adequate consideration.

Proceedings before the Commission

On 1 April 1971 the Commission first examined this application and
decided to invite the respondent Government to submit its observations
on the admissibility of the application before 24 May 1971. At the
request of the Government this time-limit was extended until 20 July
1971.

The Government justified their request for an extension of the
time-limit by stating that their experts on questions of costs and fees
had been occupied in preparing a bill amending the Acts on court costs
and barristers' fees (Entwurf eines Gesetzes zur Änderung des
Gerichtskostengesetzes und der Bundesgebührenordnung für
Rechtsanwälte). A copy of this Bill was submitted.

The applicant was informed of this. In a letter of 22 July 1971 he
replied that a raise in fees alone would not solve the problem. As long
as Sections 48 and 49 of the Federal Barristers' Act (BRAO)  were not
repealed, the duty of barristers to represent poor clients would always
have to be considered as "forced labour" because these Sections provide
that a barrister can be subjected to disciplinary measures if he
refuses to represent a person to whom legal aid has been granted. He
pointed out that the largest Bar Association (Rechtsanwaltskammer) of
the Federal Republic of Germany, namely that of Hamm, had in a session
on 20 January 1971 declared unconstitutional the fact that barristers
are by the threat of disciplinary punishment compelled, without
receiving adequate remuneration, to represent poor clients.

The respondent Government's observations were received on 17 July 1971.
The applicant was then invited to submit his reply before 6 September
1971.

Following a request of the applicant, the time-limit for the submission
of his reply to the Government's observations was extended until 20
September 1971 when his reply was received.

Summary of the observations of the parties on admissibility

I.   The respondent Government

(1)  Barristers are organs of the administration of justice and they
enjoy extensive privileges, e.g. in civil proceedings the parties have
to be obligatorily represented by a barrister before all courts other
than the District Court (Section 78 (1) of the Code on Civil
Procedure). The monopoly position of barristers is further protected
by the Law for the Prevention of Abuses in the Field of Legal Advice
(Rechtsberatungsmissbrauchsgesetz).

The duty to represent poor clients balances these advantages.

(2)  The applicant complains of his appointment to act for an assisted
party in divorce proceedings. He can only allege that this appointment
violated certain provisions of the Convention but he cannot allege in
general that the duty of barristers to represent poor persons in all
kinds of proceedings is incompatible with the Convention.

As to divorce proceedings, it is pointed out that the Government is
preparing a Bill concerning the proceedings in matrimonial and infancy
cases. Within the framework of this Bill the Government will propose
a considerable increase in the fees for legal aid counsels.

Although this application does not concern criminal proceedings, it is
further pointed out that, on 28 May 1971, the Government has submitted
a Bill to the Federal Council (Bundesrat) suggesting a considerable
increase of fees for official defence counsels. The Federal Council has
given its observations and the Bill will soon be submitted to the
Federal Parliament (Bundestag).

(3)  The duty to represent poor clients is a necessary and inherent
obligation connected with legal practice. This duty does not constitute
forced labour within the meaning of Article 12 (2) of the Basic Law,
but is a lawful regulation concerning the exercise of the profession
(Article 12 (1) phrase 2 of the Basic Law).

The duty in question does also not conflict with the international
concept of the notion of "forced or compulsory labour". The basic
provisions on the abolition of forced labour are contained in the ILO
Conventions No. 29 (28.6.70) and No. 105 (25.6.57). The background of
Convention No. 29 was the abolition of slavery and colonial oppression
and the exploitation of manpower under degrading conditions connected
therewith. Convention No. 105 was essentially intended to prohibit
forced labour as a means of political teaching and economic
development. Furthermore, it covers forced labour as a measure of work
discipline, as a penalty for strikes and as a means of racial, social,
national or religious discrimination. In view of this categorical
enumeration, a special definition of the term "forced labour" was
considered unnecessary (ILO Report of the Committee of Experts on the
Application of the Conventions and Recommendations, Geneva 1962, Report
III, Part IV, p. 203 - this report mentions as an example that the duty
to sit on a jury or the duty of students to work before they are
admitted to their profession cannot be regarded as forced labour).

Considering that the elements of forced labour are, first, that the
work is performed by the worker against his will, and, secondly, that
the requirement that the work be performed is unjust or oppressive or
the work itself involves avoidable hardship (see Iversen case,
application No. 1468/62, Yearbook, Vol. VI, p. 278 et seq.) it cannot
be maintained,

- that the requirement that a lawyer has to represent a poor party is
unjust. The public is charged with a considerable part of the costs
which are the result of legal aid. The State renounces the court fees
and pays the fees of the legal aid counsel, unless these fees can be
recovered from the opponent party.

Not only lawyers but, for example, lay judges and jurymen serve for a
remuneration that is not determined by economic considerations.

- that the requirement is oppressive. Usually the courts only appoint
those lawyers who have declared themselves interested in acting as
legal aid counsels.

The economic burden resulting from the fact that the fees paid to legal
aid counsels are below the standard fees is not inadequate or
unreasonable in relation to the total income of those counsels.
According to the applicant's own statements the loss of fees only
amounts to about 6 or 7 per cent of their total earnings. It must also
be taken into consideration that legal aid is mostly granted in
criminal proceedings and for these a considerable increase in fees is
being proposed.

(4)  In reply to the applicant's arguments that the "underpaid" legal
aid counsel might not take much interest in the case of his client, it
suffices to refer to Section 46 of the Rules for the practice of the
legal profession, which provide that a barrister has to exert the same
diligence in legal aid cases as in other cases.

(5)  Article 1 of Protocol No. 1 is not violated. It is questionable
whether the work of a barrister can be considered as a property right
within the meaning of that Article. In any event, the duty in question
only constitutes a limitation of the economic freedom of development
and is, as such, justified in the general interest. It is not
unreasonable because the time and working capacity of the barrister
concerned are not taken up excessively and his total earnings are only
slightly reduced.

(6)  With regard to Article 11, the applicant has not shown that he
is himself a victim.

II.  The applicant

(1)  A barrister is in no sense an organ of the administration of
justice and neither is he specially protected by the State nor does he
enjoy extensive privileges.

(a)  Compulsory representation by barristers applies only to civil
matters. It is in fact a burden on the Bar because litigation is no
longer a paying matter for lawyers. Furthermore, a barrister is
restricted in the exercise of his professional freedom by the fact that
he is only admitted to a single regional court or court of appeal. This
system was justified at a time when the number of barristers admitted
to the Bar was regulated (numerus clausus).

Today everyone with the necessary qualifications is at his request
admitted to the Bar.

These out-of-date rules on compulsory representation and restriction
to one court are not being maintained to protect lawyers but for
reasons of public interest, namely the convenience of judges, who
prefer to deal with cases which are coherently prepared by barristers
instead of by the parties themselves.

(b)  It is furthermore not true that, in the field of legal advice,
barristers enjoy a monopoly position. There are legal advisers
(Rechtsbeistände), tax representatives and tax advisers
(Steuerbevollmächtigte, Steuerberater), business consultants and
chartered accountants (Wirtschaftsberater, Wirtschaftsprüfer), who can
to a certain extent give legal advice. There are also employers'
associations, trade unions, banks etc. which can, also to a certain
extent, give legal advice to their members or protégés. in the field
of social insurance law, the administration keeps the fees so low that
they do not even cover the official expenses of a barrister.

In general the fees of barristers, which are fixed by the
administration, are far too low.

(c)  As a result of all the above considerations, the majority of
barristers, in spite of their long university and professional
training, do not earn more than an ordinary skilled worker.

Adding together a district court judge's (Oberamtsrichter) salary,
pension and additional perquisites, it will be found that he receives
three times as much as the average barrister.

Nevertheless, the Government dares to argue that "the principle of
equality demands that barristers should be required to perform
compulsory legal service".

(2)  An increase in fees does not change the situation. The system
must be completely voluntary and there should not be any sanctions
against barristers who refuse to represent poor parties.

(3)  The applicant was not free in choosing his profession. After he
graduated from high school he had to join the Labour Service
(Reichsarbeitsdienst) and later the army. As a consequence he could not
start his professional career before he was 36 years old. He intended
to enter the foreign service but was refused because of his age. In
public service there were no vacancies. He therefore had no choice but
to become a barrister.

(4)  Both literally and in the current usage, the term "forced labour"
is any work extorted by the threat of crippling punishment. These
elements are present.

(5)  The comparison with jurymen and other lay judges is inaccurate,
because they are not requested to render professional services but to
assume an honorary office. In any event they are also much better paid
than legal aid counsels.

(6)  According to recent statistics collected by the Federal
Statistics Office, the compulsory services required of barristers
amount to 48% of all criminal cases and 11.2-13.6% of the civil cases
in which lawyers are involved. The applicant is not only a barrister
but at the same time a notary, and notaries are also obliged to give
their services free of costs if the client is indigent.

(7)  The "professional statutes" referred to by the Government were
not established by the "opinio communis" of all barristers but by the
few leaders of the profession. These statutes were then forced on all
other lawyers.

(8)  Compulsion to undertake underpaid work cannot be justified by the
moral standards of the profession.

(9)  There can be no question of the utilisation of barristers'
services being a reasonable social obligation imposed on property. Such
an obligation would imply the existence of property subject to communal
obligations, whereas the barristers' work consists of strictly personal
services.

(10) Article 11 is violated. The applicant has, in his capacity as
chairman of the Action Committee of German Lawyers, requested the
Government to repeal Sections 48 and 49 of the Federal Barristers' Act.

The Government deliberately refrained from doing so, so as to be able
to continue using these provisions as a means of exercising pressure
on the Bar. The refusal to repeal Sections 48 and 49 therefore violates
Article 11 of the Convention.

It is pointed out in this context that the Minister of Justice of
Hessen threatened to use disciplinary measures when the Law Society
(Anwaltsverein) of S. issued a strike notice.

(11) The applicant realises that the service of barristers in legal
aid cases is necessary in the public interest. But the common weal
should never be defended on the ruins of the legal system and morality
at the expense of a small professional group.

Further proceedings and developments

The Commission examined the application on 10 February 1972 on the
basis of the written observations of the parties on admissibility.

In view of the fact that the respondent Government had submitted to
Parliament a Bill providing for higher fees for official defence
counsel, and was preparing a further Bill purporting, inter alia, an
increase in fees for legal aid counsel in matrimonial and infancy
cases, the Commission decided to adjourn the examination of the case.

By letter of 21 July 1972 the applicant informed the Commission that
the Federal Council (Bundesrat) was opposed to the proposed increase
in fees for official defence counsels and had decided to appeal to the
Conciliatory Committee (Vermittlungsausschuss) in order to have the
Government's Bill amended accordingly. The applicant was of the opinion
that this procedure and the then imminent dissolution of Parliament
would lead to a considerable delay in the adoption of the Bill. He
stated that, even if an increase in fees were finally agreed, the
rising inflation would render it insignificant. He alleged that the
Federal Council's attitude in respect of the Bill in question was
"unfair" and incompatible with "good morals" (unlater und gegen die
guten Sitten verstoßend) and requested the Commission to give a
decision as soon as possible.

A copy of the applicant's letter was sent to the respondent Government
for information. The Government replied in a letter of 7 August 1972
that there were no reasons to fear that the adoption of the Bill would
be unreasonably delayed. Furthermore, the Government stated that they
considered the applicant's above-quoted remarks to be insulting and
asked the Commission in this respect to proceed in accordance with its
established practice and jurisprudence concerning insulting remarks
made in applications.

A copy of this letter was sent to the applicant for his information
only.

On 13 September 1972 the applicant sent a further letter stating that
in his opinion the obligation of barristers to represent poor clients
was clearly "forced or compulsory labour" within the meaning of Article
2 (1) of the ILO Convention 29, which states:

"For the purpose of this Convention the term 'forced or compulsory
labour' shall mean all work or service which is exacted from any person
under the menace of any penalty and for which the said person has not
offered himself voluntarily".

On 5 October 1972 the Commission decided to adjourn the examination of
the case until December 1972.

By letter of 9 November 1972 the respondent Government informed the
Commission that the Bill in question concerning increase of fees for
official defence counsel had been adopted and that the new Law had come
into force on 1 November 1972. Section 2 of this Law contains
amendments of the Federal Act on Barristers' Fees. Section 2 No. 3
provides for an increase of the fee for defence counsel appointed by
the court in criminal matters. It provides:

"Section 97, paragraph 1 (of the Federal Act on Barristers' Fees) reads
as follows:

(1)  Where Counsel has been appointed by the Court, he shall be paid
by the State Treasury four times the minimum amounts laid down in
Sections 83-86, 90-92, 94 and 95, but not more than half the maximum
amount. If he acted as Defence Counsel also prior to the opening of the
main proceedings, he shall be paid, irrespective of the date of his
appointment, an additional fee in the sum of four times the minimum
amounts laid down in Section 84."

The Government point out that under the old version, counsel was paid
only one and a half times the amount of the respective minimum fees.

The fees for official counsel appointed by the court in proceedings
concerning deprivation of liberty were also raised. The relevant
Section 112, paragraph 4 of the Federal Act on Barristers' Fees now
reads as follows:

"(4) Where Counsel has been appointed by the Court he shall be paid
by the State Treasury four times the amount of the minimum fees laid
down in paragraphs 1, 2 and 3; ..."

The Government concluded that, in consequence of these amendments, the
financial situation of German barristers had improved.

In his reply of 30 November 1972 the applicant pointed out that his
complaint concerned an appointment in civil proceedings and that fees
for legal aid counsels in civil proceedings had not been raised.

He insisted on the repeal of Sections 48, 49 of the Federal Barristers'
Act which obliges barristers to accept appointments as legal aid
counsels. He stated that the Ministers of Justice in two Lander have
threatened to institute disciplinary proceedings based on these
Articles if the members of the Bar Associations concerned went on
strike as they had threatened. He was of the opinion that the
obligation of barristers to represent poor clients amounts to
compulsory labour within the meaning of Article 2 of ILO
Convention No. 29, and Article 4 (2) of the Convention irrespective of
the fees paid by the State. He pointed out that, as long as barristers
are compelled to accept appointments by the courts to represent poor
clients, they are prevented from fighting for higher fees by way of a
strike.

On 20 December 1972 and in subsequent sessions the Commission again
decided to adjourn the examination of the application pending the
outcome of the legislation prepared by the respondent Government and
purporting an increase in fees for legal aid counsel in matrimonial and
infancy cases.

By letter of 15 August 1973 the respondent Government submitted as
follows:

"By Article 2 No. 5 of the Act Amending the Federal Barristers' Act,
the Federal Act for Barristers' Fees and Other Provisions of 24 October
1972, paragraphs 2 and 3 of Section 123 of the Federal Act on
Barristers' Fees, which dealt with the fees for Counsel appointed under
the legal aid scheme, have been repealed...

As a result of the repeal of paragraph 2 the fees payable to a
barrister appointed under the legal aid scheme in the civil cases
mentioned therein, e.g. in divorce cases, have been improved
considerably ... Counsel appointed under the legal aid scheme are now
entitled to a fee amounting to DM 113 instead of the full fee where the
value of the property in the divorce case is DM 3000 while formerly the
fixed amount of DM 75 was, independently of the value of the property
in dispute, paid instead of the full fee.

According to Section 14 of the Court Fees Act of 26 July 1957, the
value of the property in dispute amounts to DM 3000 in divorce cases.
However, in the individual case it may be assessed at a higher amount,
the maximum being DM one million.

It is intended to provide in Article 10 No. 1 (e) of the First Act
Reforming Matrimonial and Family Law for this normal value of the
property in dispute amounting to DM 3000, as laid down in Section 14
of the Court Fees Act, to be replaced by a value amounting to DM 4000.
This Bill has been tabled in the Bundestag. According to it the fee
provided in Section 123, paragraph 1, of the Federal Act on Barristers'
Fees for Counsel appointed under the legal aid scheme would be further
increased to DM 123."

THE LAW

I.   The applicant has first complained that his appointment by the
Regional Court at Detmold to represent the defendant, who had been
granted legal aid in a divorce case, violated Article 4 (2) (Art. 4-2)
of the Convention as he had to accept this appointment against his will
and otherwise would have been subjected to disciplinary punishment.

Article 4, paragraph (2) (Art. 4-2), of the Convention provides that
no-one shall be required to perform forced or compulsory labour.

The Commission is of the opinion that the concept of compulsory or
forced labour cannot be understood solely in terms of the literal
meaning of the words. It shares the opinion, which was expressed by
four of its members in the Iversen case, that it had in fact "come to
provisions and applications of ILO Conventions and provisions and
applications of ILO Conventions and Resolutions on forced labour, as
having certain elements and that it is reasonable, in the
interpretation of Article 4 (2) (Art. 4-2) of the Convention, to have
due regard to those elements; these elements of forced or compulsory
labour are first, that the work or service is performed by the worker
against his will and, secondly, that the requirement that the work or
service is performed is unjust or oppressive or the work or service
itself involves unavoidable hardship".

The Commission has first examined whether the applicant in the present
case was required under the legal aid system to work against his will.
It notes that the applicant has freely chosen his profession as a
barrister knowing that barristers have, according to German law, the
obligation to represent poor clients if a court appoints them as legal
aid counsel. The Commission is therefore of the opinion that the
applicant cannot therefore now claim that he acted against his will as
legal aid counsel in the divorce case.

Furthermore, the work required by the applicant was not unjust since
the right to receive legal aid is provided for under the Convention,
and is thus recognised as an obligation of the State. There is also no
hardship involved since the work required was a barristers' normal
professional work. The alleged financial loss, which in any event does
not, in view of the recent changes of the respective German law, seem
to be important, can also not be regarded as causing the applicant any
real hardship. In this connection the Commission points out that,
according to the undisputed statement of the respondent Government, the
German courts respect, as a rule, the suggestions of the Bar and only
appoint those barristers who have declared an interest in taking on the
representation of persons who have been granted legal aid by the court.

It follows that the application is in this respect manifestly
ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention.

II.  The applicant has further alleged that his obligations as a
barrister to represent poor persons, who were granted legal aid,
violates Article 1 of Protocol No. 1 (P1-1) because he is not receiving
the full fee in such cases.

Article 1, first paragraph, of this Protocol (P1-1-1) provides that
every natural or legal person is entitled to the peaceful enjoyment of
his possessions. No one shall be deprived of his possessions except in
the public interest and subject to the conditions provided for by law
and by the general principles of international law.

The fact that counsel receives a fee from the State less than the
obtainable for the same work in private practice, does not mean that
he is deprived of any property right; for there was no property right
accruing to him until the grant of legal aid.

Further, as regards any claim against private party in civil
proceedings it has to be noted that a legal aid counsel can recover his
full fees from the adverse party which is also the losing party (see
Section 124 of the Code of Criminal Procedure = ZPO). This will often
be the case as legal aid is, in civil proceedings, only granted if the
case offers any prospects of success (see 114 (1) of the Code on Civil
Procedure). It does not in fact follow from the applicant's submissions
that in the divorce proceedings in question he could not recover his
fees from private party.

An examination of this complaint does not therefore disclose any
appearance of a violation of Article 1 of Protocol No. 1 (P1-1).

It follows that the application is in this respect also manifestly
ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention.

III. The applicant has further complained that the work imposed upon
him, as well as the alleged financial losses he had to bear, were of
a discriminatory nature since other professions allegedly receive an
adequate remuneration if they have to render services required by the
State in certain circumstances.

This complaint falls within the scope of Article 14 (Art. 14) in
conjunction with Article 4 (2) (Art. 4-2) of the Convention and Article
1 of Protocol No. 1 (P1-1). According to the established case-law of
the Commission and the Court of Human Rights on the meaning and scope
of Article 14 (Art. 14) and its role as an integral part of each
Article laying down rights and freedoms, a measure which, as in the
present case, in itself is in conformity with the requirements of the
Articles ensuring the rights or freedoms in question may however
infringe these Articles when read in conjunction with Article 14
(Art. 14) for the reason that it is of a discriminatory nature (see
European Court of Human Rights, case "relating to certain aspects of
the laws on the use of languages in education in Belgium" (merits),
judgment of 23 July  1968, p. 33 and the decisions of the Commission
on the admissibility of applications No. 4372/70, Collection of
Decisions, Vol. 37, p. 101 and No. 2727/66, Collection of Decisions,
Vol. 35, p. 12).

The Commission first notes that members of other professions may under
certain circumstances also be obliged to perform their duties (see e.g.
Section 2 (1) paragraph 9 Bundesleistungsgesetz). The only difference
between the situation of barristers and other professions is, according
to the applicant, that other professions are better paid in cases where
they are obliged to carry out their professional duties. The Commission
doubts whether this allegation is correct, at least generally. Taking
into account the recent increases of legal aid fees and considering
that, for example, a divorce case, where both parties consent to the
divorce, may give very little work to the barristers representing the
parties, it can be assumed that in many cases the legal aid fees in
fact constitute an adequate remuneration for the services of legal aid
counsels. But, even on the assumption that other professions are
financially treated more favourably than barristers, the Commission is
of the opinion that such differential treatment is fully justified
taking into account the factual differences between the situation of
barristers and of other professions and taking further into account
that, at least in civil proceedings, the legal aid counsel eventually
has the possibility to claim his full fees from the other party or from
his own client where the financial situation of the latter improves
(see Sections 115 (1) No. 1, 125 of the Code on Civil Procedure;
Section 100 of the Federal Act on Barristers' Fees).

An examination of this complaint does not therefore disclose any
appearance of a violation of Article 14 (Art. 14) read in conjunction
with others, Article 4, paragraph (2) (Art. 4-2), of the Convention or
Article 1 first paragraph of Protocol No. 1 (P1-1-1).

It follows that this part of the application is again manifestly
ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention.

IV.  The applicant has finally alleged a violation of Article 11
(Art. 11) of the Convention. He stated in this respect that the action
Committee of German Barristers could not make use of the most effective
weapon, namely the strike, to push through its members' well-founded
request for adequate remuneration in legal aid cases, because no
barrister would dare to go on strike as he would consequently face a
disciplinary sanction.

It is true that Article 11 (Art. 11) of the Convention guarantees to
everyone the right to freedom of peaceful assembly and to freedom of
association with others, including the right to form and to join trade
unions for the protection of his interests.

However, the Commission notes that the applicant was not prevented from
joining, or even forming, the Action Committee of German Barristers.
Furthermore, it has to be noted that, as the applicant has in his
letter of 30 November 1971 himself admitted, in various parts of the
Federal Republic barristers, who were apparently not members of the
Action Committee went on strike, refusing to take on legal aid
appointments. The authorities apparently took no action against these
lawyers. In these circumstances the applicant can himself not be
considered a victim of the alleged violation of Article 11 (Art. 11)
of the Convention.

It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention.

For these reasons, the Commission DECLARES THIS APPLICATION
INADMISSIBLE.