THE FACTS

Whereas the facts presented by the applicant may be summarised as

follows:

The applicant is a German citizen, born in 1943 and living in B. where

he is a student of the Free University. He is represented by Messrs.

E., M. and S., lawyers practising in B..

By order (Strafbefehl) of 27 March 1969 the District Court (Amtsgericht

) T. in B. imposed a summary penalty of two months imprisonment on the

applicant. According to the Court's findings the applicant had

disturbed the domestic peace and security (Hausfriedensbruch) by

breaking, with other students, into the office of the President

(Rektor) of the University. The Court decided that the execution of the

penalty should be suspended on probation.

The order was given without an oral hearing on request of the Public

Prosecutor and served on the applicant on 9 April 1969 by way of

deposition at the post office. According to the German Code of Criminal

Procedure an appeal (Einspruch) against an order inflicting a summary

penalty has to be lodged within a week after service.

The applicant lodged an appeal by letter of 16 April 1969 which was

received by the Court one day later. His defence counsel filed a brief

on 18 April 1969, which arrived on 19 April 1969, requesting the Court

to declare the appeal admissible although out of time

(Wiedereinsetzungsgesuch). They stated that the applicant was on

vacation in the Black Forest from 6 March to 14 April 1969 and had made

no arrangement to have his mail delivered there. When he came home to

B. and found the notice informing him of the deposition of the Court

order at the post office he thought the document would be considered

to have been served on him on the day when he would pick it up at the

post office. Furthermore he had read an article in a newspaper about

a decision of the Federal Constitutional Court

(Bundesverfassungsgericht) according to which a person who unknowingly

failed to lodge an appeal against a summary penalty which was served

on him while he was on vacation should be given permission to lodge the

appeal out of time within a week after his return.

By decision of .. May 1969, the District Court T. in B. refused to

grant the applicant permission to lodge his appeal out of time. The

Court pointed out that according to Article 44 of the Code of Criminal

Procedure such permission can only be granted if the applicant was

prevented from lodging the appeal in time by circumstances beyond his

control. It found that such circumstances did not exist in the case of

the applicant, because he received notice of the deposition of the

court order within the time-limit allowed and could have lodged the

appeal in time on 15 April 1969. The Court found that the applicant was

not excused by the newspaper report on a decision of the Federal

Constitutional Court, because, according to this decision, the

permission to lodge an appeal out of time is to be given only if the

applicant gets notice of the deposition of the order imposing a penalty

judgment on him after the delay for the appeal has elapsed.

The applicant made a further appeal (sofortige Beschwerde) against the

decision of the District Court alleging a violation of his right to be

heard and to defend his case in court (rechtliches Gehör). He referred

to another decision of the Federal Constitutional Court according to

which the courts should not be too strict in deciding whether or not

an applicant had valid excuses for having failed to lodge an appeal

against an order inflicting a summary penalty, on time.

However, the Regional Court (Landgericht) in B. rejected this appeal

on .. July 1969, stating that the grounds given in the District Court's

decision were correct.

The applicant alleges that the refusal of the B. courts to admit his

appeal against the order of 27 March 1969 violates Article 6 (1) and

(3) (b) of the Convention. He points out that the order inflicting a

summary penalty upon him was given without an oral hearing. He is of

the opinion that he had offered reasonable excuses for his failure to

lodge the appeal in time because laymen generally believe that a

service is not effected solely by deposition at the post office, but

by the fact that the person to whom the deposited letter is addressed

picks it up at the post office.

Furthermore, he maintains that the newspaper report concerning the

decision of the Federal Constitutional Court, could have been

interpreted by laymen to the effect that, in each case where a person

absent on vacation has been served, by way of deposition at the post

office, an order inflicting a summary penalty, the delay for lodging

an appeal against such an order takes effect from the day on which the

person returns home.

He points out that the strict and formalistic attitude of the B. courts

leads to unreasonable consequences insofar as persons who come home

from vacation on the last day of the periods during which the appeal

has to be lodged, have to file the appeal immediately or are otherwise

deprived of a fair trial, while others who come home later have a whole

week to consider whether or not to apply for permission to lodge the

appeal out of time.

THE LAW

Whereas, in regard to the applicant's complaint that he could not

defend his case in court because the summary penalty was imposed on him

without an oral hearing and because his appeal was not admitted by the

courts, the Commission first notes that according to German law an

accused person is never obliged to accept an order imposing a summary

penalty on him since he can lodge an appeal asking what the same court

which has fixed the summary penalty should examine his case in a normal

trial with an oral hearing;

Whereas it follows that such summary penalty proceedings do not

conflict with Article 6 (1) (Art. 6-1) of the Convention;

Whereas, furthermore, the Commission notes that, according to Article

163 (a), paragraph (1), of the German Code of Criminal Procedure, the

prosecution has always to examine the accused before moving for an

order imposing summary penalty; whereas it is thereby guaranteed that

an accused is never taken by surprise;

Whereas the Commission finds that in the present case the refusal of

the courts to admit the applicant's appeal is the fault of the

applicant himself since, although he must have known of the criminal

proceedings instituted against him, he had made no arrangements to have

his mail forwarded to him and he had failed to lodge the appeal

immediately after he had collected from the post office the letter

containing the court order; whereas, under these circumstances, an

examination of the case does not disclose any appearance of a violation

of the rights and freedoms set forth in the Convention and, in

particular, in Article 6 (1) and (3) (b) (Art. 6-1, 6-3-b) of the

Convention;

Whereas it follows that the application is manifestly ill-founded

within the meaning of Article 27, paragraph (2) (Art. 27-2), of the

Convention;

Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE