Еспч статья 6 конвенции
The requirements of Article 3 of the Convention were not violated unanimously. The Hungarian authorities referred to a schematic reference to the list of third countries' secure third countries. They did not take into account the country reports and other evidence submitted by the applicants and placed an unfair and excessive burden of proof on them. Owing to the first applicant's error, the interpreter was interviewed with a Dari, a language he did not speak, and the immigration authority provided him with an information leaflet on the asylum procedure also in Dari. In this regard, his chances of actively participating in the proceedings and explaining the details of his flight from the country were extremely limited.
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The Court heard addresses by Mrs. Maier for the Government, by Mr. Weitzel for the Commission and by Mr. Hohbach for the applicant, as well as their replies to its questions.
On various dates between 3 February and 11 May , the Commission, the Government and the applicant produced a number of documents either at the Court's request or of their own motion. Particular circumstances of the case Uli Lutz, a German national born in , lives in Heilbronn-Horkheim.
On 10 October , he was riding a motor cycle and was involved in a road accident. According to the police report Verkehrs-Ordnungswidrigkeiten-Anzeige , he had attempted to overtake a car, although the traffic situation was unclear unklare Verkehrslage. The result had been a collision which caused damage to both vehicles.
When he was questioned, the applicant made the following statement: Near the junction with Amsterdamer Strasse, I noticed a red car - which had its left indicator flashing - about to pull away from the kerb.
I was about to overtake on the left of this vehicle when it not only moved forward onto the road but turned further to the left in order to make a U-turn. As I was not expecting it to make a U-turn, I was intending to overtake it on the left.
By the time I realised that this was no longer possible, I had already moved over quite far to the left and I tried to brake but could not avoid colliding with the car, which by now was at right angles to the flow of traffic. I was wearing a crash helmet when the accident occurred; I was not injured.
Lutz a fine Geldbusse of DM , to which were added costs of DM 14, for "joint responsibility for a road accident due to overtaking in an unclear traffic situation such that a collision was caused with another road-user".
The decision was based on section 24 of the Road Traffic Act Strassenverkehrsgesetz - see paragraph 38 below and Regulations 1 2 , 5 and 49 of the Road Traffic Regulations Strassenverkehrs-Ordnung.
Regulation 1 2 reads: By Regulation 49 1 1 and 49 5 , it is a "regulatory offence" Ordnungswidrigkeit to contravene Regulations 1 2 and 5 1 to 3 ; under section 24 2 of the Road Traffic Act, such an offence is punishable by a fine. The driver of the car was likewise fined for a "regulatory offence".
Two days later, Mr. Lutz, who was represented by Mr. Wingerter, lodged an objection Einspruch against the decision of 9 December The appropriate authority in Heilbronn forwarded the objection to the public prosecutor's office on 23 January , and the latter transmitted it to the Heilbronn District Court Amtsgericht on 5 February.
On 24 July , the court informed the applicant that it intended to discontinue the proceedings as they were time-barred and order costs against the Treasury Staatskasse , while the applicant would have to bear his own necessary costs and expenses notwendige Auslagen. On 12 August, Mr. Wingerter replied that his client naturally agreed to the stay of proceedings, but not to an order requiring him to bear his own necessary costs and expenses; and he referred among other things to "the presumption of innocence, secured in the Convention on Human Rights".
On 24 August , the District Court stayed the proceedings on the ground that they were time-barred. Its decision read as follows: Uli Lutz concerning a breach of the Road Traffic Regulations, The costs of the proceedings shall be borne by the Treasury.
The defendant shall bear his own necessary costs and expenses. On 9 December , the Heilbronn Police Authority took a decision to impose a fine Bussgeldbescheid on the defendant for a breach of the Road Traffic Regulations.
The defendant appealed against this decision. By an order made on 27 January , the public prosecutor's office in Heilbronn forwarded the case to the Heilbronn District Court for a decision.
After the case had been submitted, prosecution of the "regulatory offence" became time-barred under section 26 4 of the Road Traffic Act. The decision on costs is based on Article of the Code of Criminal Procedure, taken together with section 46 of the Act on "regulatory offences".
That being so, it would be unjust unbillig to award his necessary costs and expenses against the Treasury. On 10 September , the applicant challenged this decision in so far as he had been ordered to bear his own costs and expenses. On 25 September, the Heilbronn Regional Court Landgericht dismissed the appeal sofortige Beschwerde as being unfounded.
As it had already explained at length in an earlier decision, Article 6 art. This was clear beyond a peradventure from the wording of the provision itself. He had himself admitted to the police that he was not expecting the car which was moving out to the left onto the road in front of him to make a U-turn; and that he had consequently attempted to overtake it but had been unable to avoid a collision despite his efforts to brake.
Lutz had thus broken the basic rule in Regulation 1 2 of the Road Traffic Regulations and, in particular, had disregarded his duty under Regulation 5 3 1 not to overtake where the traffic situation was unclear. The court held that in such circumstances it would have been unjust to award the defendant's necessary costs and expenses against the Treasury, especially as the prosecution had become time-barred only during the course of the court proceedings, so that until that moment the defendant was rightly being proceeded against.
Lutz then applied to the Federal Constitutional Court Bundesverfassungsgericht , but on 2 February a bench of three of that court's judges refused to entertain the application, holding that it had insufficient prospects of success.
However strong the suspicions, the presumption of innocence precluded taking measures against a defendant Beschuldigter that amounted in effect to a penalty Strafe in anticipation of a penalty im Vorgriff auf die Strafe.
This rule was not infringed where the necessary costs and expenses of a party who had been proceeded against in respect of a "regulatory offence" were not awarded against the Treasury in the event of the proceedings being discontinued.
The reasons for the order as to costs in the impugned decisions are therefore rightly confined to the finding that the defendant would most probably have been found guilty. Relevant domestic law A. Act on "regulatory offences" The purpose of this legislation was to remove petty offences from the sphere of the criminal law.
Included in this category were contraventions of the Road Traffic Act. Under section 21 of the Road Traffic Act in its old version , commission of such contraventions had given rise to liability to a fine Geldstrafe or imprisonment Haft. It was most recently amended by a statute of 7 July , which entered into force on 1 April The fine cannot be less than DM 5 or, as a general rule, more than DM 1, section 17 1.
If the act constitutes both a "regulatory" and a criminal offence, only the criminal law is applicable; however, if no criminal penalty Strafe is imposed, the act may be punished as a "regulatory offence" section The prosecuting authorities Where an act has come before him as a criminal matter, the public prosecutor may also treat the act as a "regulatory offence" section The administrative authorities will remit the matter to the public prosecutor if there is reason to suppose that a criminal offence has been committed; he will refer the matter back to them if he does not take proceedings section In the case of a "regulatory offence" having a close connection with a criminal offence in respect of which the public prosecutor has instituted proceedings, the prosecutor may extend the criminal proceedings to cover the "regulatory offence" as long as the administrative authorities have not fixed any fine section The public prosecutor's decision to treat or not to treat an act as a criminal offence is binding on the administrative authorities section Procedure in general Once the case has been brought before a court see paragraphs 29 - 30 below , power to direct a stay of proceedings rests with the court; any such decision requires the agreement of the public prosecutor and is final section 47 2.
Investigations Erforschung into "regulatory offences" are a matter for the police authorities. Prior to any decision being taken, the person concerned Betroffener has to be given the opportunity of commenting, to the competent authorities, on the allegation made against him section In the case of a minor offence, the administrative authorities may give the person concerned a warning Verwarnung and impose on him an admonitory fine Verwarnungsgeld ; save for any exception laid down under the applicable law, the amount of an admonitory fine ranged from DM 5 to 40 at the relevant time, and since 1 April has ranged from DM 5 to 75 section 56 1.
However, sanctions of this kind are possible only if the person concerned consents and pays the fine on the spot or within one week section 56 2. If necessary, the administrative authorities will officially designate a lawyer to act for the person concerned in the proceedings before them section Measures taken by the administrative authorities during the preliminary procedure can in principle be challenged before the courts section Administrative decision imposing a fine The person concerned may lodge an objection Einspruch within a period which on 1 April was increased from one week to two weeks section Unless they withdraw their decision, the administrative authorities will then forward the file to the public prosecutor, who will submit it to the competent District Court and thereupon assume the function of prosecuting authority sections 68 and Judicial stage if any of the procedure However, the District Court's ruling may take the form of an order Beschluss if the court considers that a hearing is not necessary and provided the public prosecutor or the person concerned does not object section 72 1.
In that event, it may, inter alia, acquit the person concerned, settle the amount of a fine or terminate the prosecution, but it cannot increase the penalty section 72 2 , now renumbered 3. The person concerned has the option of attending the hearing but is not bound to do so unless the District Court so directs section 73 1 and 2 ; he may be represented by a lawyer section 73 4.
The public prosecutor's office may be represented at the hearing; if the District Court considers the presence of an official from that office to be appropriate, it will inform the latter accordingly section 75 1.
The District Court will give the administrative authorities the opportunity to set out the matters which, in their view, are of importance for the decision to be given; they may address the Court at the hearing, if they so wish section 76 1.
Administrative procedure and criminal procedure The administrative authorities' classification of an act as a "regulatory offence" is not binding on the court ruling on the objection; however, it can apply the criminal law only if the person concerned has been informed of the change of classification and been enabled to prepare his defence section 81 1.
Enforcement of decisions imposing a fine A decision imposing a fine is enforceable once it has become final sections 89 and When the decision is one taken by a court, certain relevant provisions of, inter alia, the Code of Criminal Procedure are applicable section If, without having established dargetan his inability to pay, the person concerned has not paid the fine in due time, the court may, at the request of the administrative authorities or, where the fine was imposed by a court decision, of its own motion, order coercive imprisonment Erzwingungshaft - section 96 1.
The resultant detention does not replace payment of the fine in the manner of an Ersatzfreiheitsstrafe under the criminal law, but is intended to compel payment. The period of detention may not exceed six weeks for one fine and three months for several fines section 96 3.
Implementation of the detention order is governed, inter alia, by the Code of Criminal Procedure section As far as the costs of the administrative procedure are concerned, the competent authorities apply by analogy certain provisions of the Code of Criminal Procedure section Under section - likewise amended with effect from 1 April -, the person concerned has to bear the costs of the court proceedings if he withdraws his objection or if the competent court rejects it.
For the rest, the provisions of the Code of Criminal Procedure regarding payment of the costs of proceedings and of parties' necessary costs and expenses apply by analogy Article et seq. By the terms of Article of the Code of Criminal Procedure, any judgment, order of summary punishment or decision terminating a set of proceedings must determine who is to pay the costs of the proceedings paragraph 1 ; the judgment or decision in which the proceedings culminate shall state who is to bear the necessary costs and expenses paragraph 2.
If the defendant Angeschuldigter is acquitted or if committal for trial Hauptverfahren is refused or if the proceedings against him are discontinued, the costs of the proceedings and the defendant's necessary costs and expenses shall be borne by the Treasury.
The court may decline to award the defendant's necessary costs and expenses against the Treasury where the defendant Road traffic fines Section 24 of the Road Traffic Act provides: Such reference shall not be required where the provision of the statutory instrument was made before 1 January A "regulatory offence" is punishable by a fine.
Eissen, Registrar, and Mr. Petzold, Deputy Registrar, Having deliberated in private on 25 and 26 March and on 21 September , Delivers the following judgment, which was adopted on the last-mentioned date: The case originated in an application no. The request referred to Articles 44 and 48 art.
It may be subject to editorial revision. In the case of Goncharova and Others and 68 other "Privileged pensioners" cases v. The case originated in 69 applications nos. The applications' dates of introduction are also tabulated in the Annex. In the course of the proceedings applicants Vladimir Nikolayevich Yeremin and Igor Mikhaylovich Semyonov died, and their relatives adopted the applications.
In Russian Ershov V. In Russian Marchenko M. In Russian Sultanov A. In Russian Ignatenko G. Sovremennye aspekty sudebnogo pravoprimenenija mezhdunarodnyh aktov [Modern Aspects of Judicial Enforcement of International acts]. In Primenenie mezhdunarodnyh dogovorov v oblasti prav cheloveka v pravovoj sisteme RF: Collection of Scientific Papers]. Petersburg, May 17, ]. Problemy realizatsii konventsii o pravah cheloveka [Problems of Realization of Convention on Human Rights] http: A naposledok ja skazhu
Eissen, Registrar, and Mr H. Petzold, Deputy Registrar, Having deliberated in private on 24 September and 27 January , Delivers the following judgment, which was adopted on the last-mentioned date: The case was referred to the Court by the European Commission of Human Rights "the Commission" on 13 December , within the three-month period laid down by Article 32 para. It originated in an application no. The Commission's request referred to Articles 44 and 48 art.