AS TO THE ADMISSIBILITY OF
Application no. 74235/01
by Seraffedin AKBINGÖL
The European Court of Human Rights (Third Section), sitting on 18 November 2004 as a Chamber composed of:
Mr B.M. Zupančič, President,
Mr J. Hedigan,
Mr L. Caflisch,
Mr C. Bîrsan,
Mrs A. Gyulumyan,
Ms R. Jaeger,
Mr E. Myjer, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 25 October 1999,
Having deliberated, decides as follows:
The applicant, Mr Seraffedin Akbingöl, is a Turkish national, who was born in 1965 and lives in Plattling. He was represented before the Court by Mrs Angelica Lex, a lawyer practising in Munich.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 30 June 1997 the applicant was convicted by the Munich Regional Court (Landgericht München) of an offence under the Associations Act (Vereinsgesetz) and sentenced to six months imprisonment on probation. He was found guilty of having participated in Germany in activities of illegal Turkish organisations.
On 31 October 1997 the Public Prosecutor at the Munich Regional Court served the applicant with a notice to pay the costs, including costs for the translation of his telephone conversations from Kurdish and Turkish into German. These conversations were taped in the course of the criminal investigation.
The applicant unsuccessfully challenged the inclusion of the translation costs in this assessment of the costs. On 19 February 1999 his appeal was dismissed by the Bavarian Court of Appeal (Bayerisches Oberstes Landesgericht) which held, inter alia, that the accused should bear the costs of such part of the proceedings as concerned the act that gave rise to the conviction. The applicant's conviction was mainly based on the telephone tapping. Article 6 § 3 (e) of the Convention did not prevent translation costs being awarded against a convicted person. This provision had the purpose of ensuring that, irrespective of his financial situation, an accused who could not understand or speak the language used in court had the right to an effective defence and accordingly to a fair trial. The free assistance of an interpreter had therefore to cover all the issues which were relevant for the defence. There would be a breach of the principle of equality of arms between the prosecution and the defence where an accused was deprived of the opportunity to have knowledge of these issues.
However, the situation found in the present case did not affect the applicant's rights under Article 6 § 3 (e). The translation of the applicant's telephone conversations was not necessary for his defence. It was required for the investigations to be carried out in a Kurdish or Turkish speaking environment. These costs were therefore excluded from the scope of Article 6 § 3 (e) of the Convention. This provision did not imply that a foreign accused was exempted from the payment of the costs of the investigations in so far as they resulted from the use of his mother tongue.
On 14 April 1999 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a panel of three judges, refused to entertain the applicant's constitutional complaint.
The applicant complained under Article Article 6 § 3 (e) of the Convention that the obligation to pay the costs for the translation of his telephone conversations, as imposed on him by the Public Prosecutor of the Munich Regional Court, was in breach of Article 6 § 3 (e) of the Convention. He further complained that, as a foreigner using his mother tongue, he was discriminated against, because he had to bear a heavier financial liability than a national of the respondent State.
1. The applicant complained about the obligation to pay the interpretation costs, as imposed on him by the Public Prosecutor at the Munich Regional Court. He alleged a breach of Article 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."
The Court notes that the applicant did not complain that he could not adequately defend himself. The applicant was granted 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 was necessary for him to understand or to have rendered into the court's language in order to have the benefit of a fair trial (see Luedicke, Belkacem and Koç v. Germany, judgment of 28 November 1978, Series A no. 29, p. 20, § 48). Moreover, the free assistance of an interpreter does not require a written translation of all items of written evidence or official documents in the procedure (see Kamasinski v. Austria, judgment of 19 December 1989, Series A no. 168, p. 35, § 74). The applicant's telephone conversations had to be translated for the purposes of the criminal investigation. Their translation was not necessary for the applicant's defence, since he knew the contents of these conversations. The translation thus did not concern a matter for which the free assistance of an interpreter was required under Article 6 § 3 (e). The Court concludes that in the present case the obligation to pay the costs for this translation as part of the costs of the criminal proceedings cannot be a basis for a complaint under the Article 6 § 3 (e).
It follows that this part of the application must be rejected as being incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3.
2. The applicant further complained of discriminatory treatment in breach of Article 14 of the Convention. According to him, a foreigner using his mother tongue was in a less favourable position than a German national.
Article 14 reads as follows:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as ... language ... national origin ...”
The Court recalls that Article 14 has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. However, the application of Article 14 does not presuppose a breach of one or more of such provisions and to this extent it is autonomous. For Article 14 to become applicable it suffices that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols (see Thlimmenos v. Greece, judgment of 6 April 2000, Reports of Judgments and Decisions 2000-VI, p. 278, § 40). Since the Court has found above that the applicant's complaint did not fall within the scope of Article 6 § 3 (e), the applicant cannot complain of discrimination in the context of this provision and those proceedings.
It follows that this part of the application must likewise be rejected as being incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3.
For these reasons, the Court unanimously
Declares the application inadmissible.
Boštjan M Zupančič
AKBINGOL v. GERMANY DECISION
AKBINGOL v. GERMANY DECISION