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You are here: BAILII >> Databases >> European Court of Human Rights >> ÖZTÜRK v. GERMANY (ARTICLE 50) - 8544/79 [1984] ECHR 13 (23 October 1984) URL: http://www.bailii.org/eu/cases/ECHR/1984/13.html Cite as: [1984] ECHR 13 |
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In the Öztürk case (*),
_______________
(*) The case is numbered 9/1982/55/84. The second figure indicates the
year in which the case was referred to the Court and the first figure its
place on the list of cases referred in that year; the last two figures
indicate, respectively, the case's order on the list of cases and of
originating applications (to the Commission) referred to the Court since
its creation.
_______________
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:
_______________
(**) In the version of the Rules applicable when proceedings were
instituted. A revised version of the Rules entered into force on
1 January 1983, but only in respect of cases referred to the Court after
that date.
_______________
Mr. G. Wiarda, President,
Mr. R. Ryssdal,
Mr. Thór Vilhjálmsson,
Mr. W. Ganshof van der Meersch,
Mr. F. Matscher,
Mr. B. Walsh,
Mr. R. Bernhardt,
and also Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy
Registrar
Having deliberated in private on 24 September 1984,
Delivers the following judgment, which was adopted on that date, on
the application in the present case of Article 50 (art. 50) of the
Convention:
PROCEDURE AND FACTS
1. The present case was referred to the Court by the Government
of the Federal Republic of Germany ("the Government") in
September 1982 and then by the European Commission of Human Rights
("the Commission") in October 1982. The case originated in an
application (no. 8544/79) against that State lodged with the
Commission on 14 February 1979 by a Turkish national,
Mr. Abdulbaki Öztürk.
2. The Chamber constituted to hear the case relinquished
jurisdiction in favour of the plenary Court on 27 May 1983 (Rule 48 of
the Rules of Court). By a judgment delivered on 21 February 1984, the
Court held that there had been a breach of Article 6 para. 3 (e)
(art. 6-3-e) of the Convention in that the applicant had not received
the free assistance of an interpreter during proceedings before the
Heilbronn District Court (Series A no. 73, paragraphs 57-58 of the
reasoning and point 2 of the operative provisions, pp. 22-23).
The only outstanding matter to be settled is the question of the
application of Article 50 (art. 50) in the present case. Accordingly,
as regards the facts, the Court will confine itself here to giving the
pertinent details; for further particulars, reference should be made
to paragraphs 9 to 41 of the above-mentioned judgment (pp. 8-16).
3. At the hearings held on 25 May 1983, Mr. Wingerter, counsel
for the applicant, had sought, by way of just satisfaction for his
client, reimbursement of interpretation fees of DM 63.90 and payment
of lawyer's costs incurred before the Convention institutions; as to
the amount of the latter costs, he had stated that he left the
decision to the discretion of the Court (ibid., p. 22, paragraph 59 of
the reasoning). The Government had not taken a stand on the matter
(ibid.).
In its judgment of 21 February 1984, the Court reserved the whole of
the question (ibid., paragraph 60 of the reasoning and point 3 of the
operative provisions, pp. 22-23); the same day, it referred the
question back to the Chamber under Rule 50 para. 4 of the Rules of
Court.
4. The President of the Chamber, to whom the Chamber had
delegated the power to fix the further procedure, obtained, through
the Deputy Registrar, the views of the Agent of the Government and of
the Delegates of the Commission. On 2 March 1984, he directed that
the Agent should have until 16 March 1984 to file her comments and
that the Delegates should then have one month within which to reply in
writing.
The Registrar received the Government's memorial on 15 March. The
Delegates' memorial was lodged on 18 May, following an extension of
the time-limit granted by the President of the Chamber on 9 May.
On 16 August, the Secretary to the Commission informed the Registrar
that the applicant's lawyer had notified him of his claims and
comments by telephone and not in writing, as he had been requested to
do.
5. Mr. B. Walsh, substitute judge, replaced Mr. J. Pinheiro
Farinha, who was prevented from taking further part in the
consideration of the case (Rules 22 para. 1 and 24 para. 1).
6. After consulting the Agent of the Government and the Delegates
of the Commission through the Deputy Registrar, the Chamber decided on
24 September that there was no need to hold a hearing.
AS TO THE LAW
7. Article 50 (art. 50) of the Convention reads as follows:
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising from
the ... Convention, and if the internal law of the said Party allows
only partial reparation to be made for the consequences of this
decision or measure, the decision of the Court shall, if necessary,
afford just satisfaction to the injured party."
8. The applicant's lawyer sought, by way of just satisfaction for
his client, reimbursement of the interpretation fees of DM 63.90.
These fees were, however, borne by Mr. Öztürk's insurance company and
not by Mr. Öztürk personally (see the above-mentioned judgment
of 21 February 1984, p. 10, para. 16, and the respective memorials of
the Government and the Delegates of the Commission), so that there is
no prejudice capable of being the subject of a claim for restitution.
9. Mr. Wingerter further requested, on behalf of his client,
payment of lawyer's costs incurred before the Convention institutions.
According to the oral indications he gave to the Secretariat of the
Commission, these costs amounted to DM 3,000.
In order for such costs to be included in an award under Article 50
(art. 50), it must be established that they were actually incurred,
necessarily incurred and reasonable as to quantum (see, as the most
recent authority, the Campbell and Fell judgment of 28 June 1984,
Series A no. 80, pp. 55-56, para. 143). The Government considered
that these requirements were not met and therefore submitted that the
claim should be rejected. The Delegates of the Commission shared the
Government's view.
In point of fact, there is nothing to show that Mr. Öztürk paid or is
bound to pay the sums in question. Mr. Wingerter did no more than
give an indication over the telephone of his claims, without
furnishing any particulars or documentary corroboration despite the
fact that he had been asked to do so by the Secretary to the
Commission (see paragraph 4 above). Accordingly, this part of the
claim is also unfounded.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Rejects the claim for just satisfaction.
Done in English and in French, the French text being authentic, at the
Human Rights Building, Strasbourg on 23 October 1984.
Signed: Gérard WIARDA
President
Signed: Marc-André EISSEN
Registrar