PROCEDURE

The case was referred to the Court by the European Commission of Human Rights (“the Commission“) on 28 January 1986, within the three-month period laid down by Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention“). It originated in an application (no. 9912/82) against the Federal Republic of Germany lodged with the Commission under Article 25 (art. 25) by a national of that State, Mr. Uli Lutz, on 14 June 1982. The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the Federal Republic of Germany recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The purpose of the request was to obtain a decision as to whether or not the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 § 2 (art. 6-2).

In response to the enquiry made in accordance with Rule 33 § 3 (d) of the Rules of Court, Mr. Lutz stated that he wished to take part in the proceedings pending before the Court and designated the lawyer who would represent him (Rule 30).

On 28 January 1986, the President of the Court decided that in the interests of the proper administration of justice this case and the Englert and Nölkenbockhoff cases should be considered by the same Chamber (Rule 21 § 6). The Chamber of seven judges to be constituted included, as ex officio members, Mr. R. Bernhardt, the elected judge of German nationality (Article 43 of the Convention) (art. 43), and Mr. R. Ryssdal, the President of the Court (Rule 21 § 3 (b)). On 19 March 1986, in the presence of the Registrar, the President drew by lot the names of the other five members, namely Mr. F. Matscher, Mr. J. Pinheiro Farinha, Mr. L.-E. Pettiti, Sir Vincent Evans and Mr. R. Macdonald (Article 43 in fine of the Convention and Rule 21 § 4) (art. 43).

After assuming the office of President of the Chamber (Rule 21 § 5), Mr. Ryssdal consulted - through the Deputy Registrar - the Agent of the German Government (“the Government“), the Delegate of the Commission and the lawyer for the applicant on the need for a written procedure. On 2 April, he directed that the Agent and the applicant’s lawyer should have until 1 July 1986 to file memorials and that the Delegate should be entitled to reply in writing within two months (Rule 37 § 1). At the same time, he gave the applicant’s lawyer leave to use the German language in the proceedings (Rule 27 § 3). The President twice extended the first of these time-limits - on 3 July until 31 October, and on 10 November until 21 November 1986.

The Government’s memorial was lodged with the registry on 13 November 1986. The applicant informed the Registrar on the same day that he would not be filing a memorial.

On 29 November, the Chamber decided to relinquish jurisdiction forthwith in favour of the plenary Court (Rule 50).

On 15 December, the Secretary to the Commission informed the Registrar that the Delegate would submit his observations at the hearing.

The next day, having consulted - through the Deputy Registrar - the Agent of the Government, the Delegate of the Commission and the lawyer for the applicant, the President directed that the oral proceedings should open on 23 February 1987 (Rule 38). On 6 February, he granted the members of the Government’s delegation leave to speak in German (Rule 27 § 2).

The hearing was held in public in the Human Rights Building, Strasbourg, on the appointed day. The Court had held a preparatory meeting immediately beforehand. There appeared before the Court:

for the Government Mrs. I. Maier, Ministerialdirigentin, Federal Ministry of Justice, Agent, Mr. P.-G. Pötz, Ministerialdirigent, Federal Ministry of Justice, Mr. H. Stöcker, Ministerialrat, Federal Ministry of Justice, Mr. E. Göhler, Ministerialrat, Federal Ministry of Justice, Advisers;

for the Commission Mr. A. Weitzel, Delegate;

for the applicant Mr. N. Wingerter, Rechtsanwalt, Mr. V. Hohbach, Rechtsanwalt, Counsel. The Court heard addresses by Mrs. Maier for the Government, by Mr. Weitzel for the Commission and by Mr. Wingerter and Mr. Hohbach for the applicant, as well as their replies to its questions.

On various dates between 3 February and 11 May 1987, the Commission, the Government and the applicant produced a number of documents either at the Court’s request or of their own motion.

AS TO THE FACTS

I. PARTICULAR CIRCUMSTANCES OF THE CASE

Mr. Uli Lutz, a German national born in 1959, lives in Heilbronn-Horkheim.

On 10 October 1980, 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: “At about 4.30 p.m. today, I was driving southwards along Hohenloher Strasse, Heilbronn-Horkheim. 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. [It] was making its U-turn and was on the point of moving into the opposite carriageway (Gegenfahrspur) when I was still about ten yards behind it. 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.“

On 9 December 1980, on the basis of the police report, the Heilbronn Police Authority (Amt für öffentliche Ordnung) imposed on Mr. Lutz a fine (Geldbusse) of DM 125, 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: “All road-users have a duty to conduct themselves in such a manner as not to harm or jeopardise others or inconvenience or annoy them more than may be inevitable in the circumstances.“ Regulation 5 provides that motorists must overtake on the left (paragraph 1), that they may overtake only if they can see that they will not thereby interfere with oncoming traffic (paragraph 2) and that no overtaking is allowed in an unclear traffic situation (paragraph 3(1)). 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 1980. The appropriate authority in Heilbronn forwarded the objection to the public prosecutor’s office on 23 January 1981, and the latter transmitted it to the Heilbronn District Court (Amtsgericht) on 5 February. On 24 July 1981, 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 1981, the District Court stayed the proceedings on the ground that they were time-barred. Its decision read as follows: “In the ‘regulatory offence’ matter (Bussgeldsache) against ... Uli Lutz concerning a breach of the Road Traffic Regulations, ... the proceedings shall be stayed. The costs of the proceedings shall be borne by the Treasury. The defendant shall bear his own necessary costs and expenses. Reasons: On 9 December 1980, 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 1981, 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 proceedings must therefore be stayed by reason of there being a technical bar to prosecution (Verfolgungshindernis), in accordance with Article 206a of the Code of Criminal Procedure, taken together with section 46 of the Act on ‘regulatory offences’ (Gesetz über Ordnungswidrigkeiten) [see paragraph 19 below]. The decision on costs is based on Article 467 of the Code of Criminal Procedure, taken together with section 46 of the Act on ‘regulatory offences’. In accordance with Article 467 § 2 [sic], second sentence, of the Code of Criminal Procedure, taken together with section 46 of the Act on ‘regulatory offences’, the court declines to order the Treasury to bear the defendant’s necessary costs and expenses. As the file stands, the defendant would most probably have been convicted of an offence against the Road Traffic Regulations (Nach Lage der Akten wäre der Betroffene mit hoher Wahrscheinlichkeit wegen eines Verstosses gegen die StVO verurteilt worden). That being so, it would be unjust (unbillig to award his necessary costs and expenses against the Treasury.“

On 10 September 1981, 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. The court held that Article 6 § 2 (art. 6-2) of the Convention did not apply to the case. As it had already explained at length in an earlier decision, Article 6 (art. 6) protected the individual only from possible hazards in civil or criminal trials. This was clear beyond a peradventure from the wording of the provision itself. There was no reason to give Article 6 § 2 (art. 6-2) a broad interpretation such as would extend its application to other proceedings. The Article (art. 6-2) consequently could not apply to proceedings in connection with “regulatory offences“, as these had been excluded from the category of criminal offences, and procedure relating to them was quite distinct from criminal procedure. On the basis that Article 6 § 2 (art. 6-2) was not applicable, the District Court had therefore been right to order the defendant to bear his own necessary costs and expenses (under Article 467 § 3, second sentence, sub-paragraph 2, of the Code of Criminal Procedure) because had the prosecution not been statute-barred, “the defendant would almost certainly (mit annähernder Sicherheit) have been found guilty of an offence“. 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. Mr. 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.

Mr. Lutz then applied to the Federal Constitutional Court (Bundesverfassungsgericht), but on 2 February 1982 a bench of three of that court’s judges refused to entertain the application, holding that it had insufficient prospects of success. In the Constitutional Court’s view, the decisions of the District Court and the Regional Court did not offend the presumption of innocence, which was founded on the principle of the rule of law and was embodied in Article 6 § 2 (art. 6-2) of the Convention. 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 judgment continued: “The decision not to order the Treasury to pay the costs and expenses of the party concerned obviously cannot be regarded as a punishment (Bestrafung) or even be equated with such. Furthermore, the decision as to costs and expenses pursuant to Article 467 § 3, sub-paragraph 2, of the Code of Criminal Procedure and section 46(1) of the Act on ‘regulatory offences’ does not make any finding that the person concerned is guilty: it derives merely from the suspicion falling on him, which had given rise to his being prosecuted for a ‘regulatory offence’. 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.“