AS TO THE ADMISSIBILITY

Application No. 22543/93

by Robert Gerhard SALINGA

against Germany

The European Commission of Human Rights sitting in private on 7 December 1994, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. ŠVÁBY

G. RESS

Mr. H.C. KRÃœGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 30 July 1993 by Robert Gerhard SALINGA against Germany and registered on 27 August 1993 under file No. 22543/93;

Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the applicant, may be summarised as follows.

The applicant, born in 1957, is a German national and resident in Stuttgart.  He is a businessman by profession.  Before the Commission he is represented by Mr. Mackenrodt , a lawyer and notary practising in Stuttgart.

A. Particular circumstances of the case

On 9 May 1992 the Schwäbisch Gmünd District Court ( Amtsgericht ) issued a penal order ( Strafbefehl ) against the applicant in accordance with a summary procedure.  The applicant was sentenced to a fine of DM 50 per day for 120 days for insult and bodily assault.  The District Court, proceeding from the statements of two witnesses, namely Ms. W., the victim of the offences, and her son, found that the applicant had, in the course of a dispute concerning the payment of a sum of money, insulted Ms. W. and hit her on her chest whereupon she fell and broke the upper thigh of her right leg.

The said penal order included a note as to the remedies available ( Rechtsbehelfsbelehrung ) according to which an objection ( Einspruch ) could be lodged with the District Court, or taken down in writing at the court office, within two weeks of service of the penal order.  Trial proceedings ( Hauptverhandlung ) would then be instituted, covering both the factual and legal issues of the case concerned.  In the note, it was further specified that a penal order need not be served personally, but that it was also validly served if handed over to another family member, or the landlord, living in the same house, or if it was served by way of a notification in the addressee's letter-box to collect the penal order at the local post office.  It finally informed the person concerned that, if no objection was lodged within two weeks, the penal order should be final, binding and enforceable.

On 13 May 1992, when the postman found nobody at the applicant's place of residence in Stuttgart, the order was served by way of a notification in the applicant's letter-box to collect a letter at the Stuttgart 30 post office.

Since no objection had been lodged by the applicant within the two-week time-limit under the relevant provisions of the Code of Criminal Procedure ( Strafprozeßordnung ), it acquired legal force as the final judgment in the matter on 29 May 1992.

On 11 June 1992 the Ellwangen / Jagst Public Prosecutor's Office ( Staatsanwaltschaft ) issued a payment order ( Zahlungsaufforderung ) against the applicant, ordering him to pay the above fine, and warning him that in default of payment, execution measures would be instituted.

On 13 July 1992 the Ellwangen / Jagst Public Prosecutor's Office issued a further payment order against the applicant.  The letter was returned to the Prosecutor's Office with a handwritten note on the back of the envelope dated 16 July 1992 which stated that the letter could not be served, that the letter-box was overfilled and that the addressee was unknown. 

The applicant found the payment order of June 1992 in his letter-box when returning to his place of residence for one day at the end of July 1992.  Upon his inquiry with the Public Prosecutor's Office, he was sent a copy of the penal order on 29 July 1992.  A further payment order was dated 22 September 1992.

On 2 December 1992 the applicant's counsel, Mr. Mackenrodt , submitted an application for the reinstatement of the proceedings ( Wiedereinsetzung in den vorherigen Stand) and lodged, at the same time, an objection against the penal order.  In the reasons, it was stated that between 10 May and 30 November 1992 the applicant had stayed with his mother at Obergröningen and also travelled abroad, and had only once been at his place of residence at the end of July 1992.  On that occasion he had only found a payment order regarding an amount of DM 6,036.  Thereupon, he had inquired with the Ellwangen Public Prosecutor's Office about the background of this payment order, and he had been promised further information in writing.  He had found this information, namely a copy of the penal order, which had been sent to him on 29 July 1992, only upon his return on 30 November 1992.  His submissions were received at the District Court on 4 December 1992.

On 21 December 1992 the Schwäbisch Gmünd District Court dismissed the applicant's application for a reinstatement and rejected his objection against the penal order as having been lodged out of time.  The District Court referred to S. 44 of the Code of Criminal Procedure according to which reinstatement may be granted if certain deadlines have been missed through no fault of the person concerned.  It considered that the applicant was not prevented by any fault save his own from filing an objection in time.  The Court noted the applicant's statement that no penal order had been in his letter-box at the end of July 1992.  However, having regard to the service by means of notification that the penal order should be collected at the post office, the Court found that the applicant had failed to explain why he had not found the said notification in his letter-box.  Moreover, the applicant had been absent from his place of residence for several months without ensuring that he would receive his mail.

On 19 February 1993 the Ellwangen / Jagst Regional Court (Land- gericht ) dismissed the applicant's appeal ( sofortige Beschwerde ).  The Regional Court found that the applicant had failed to lodge his application for a reinstatement in the proceedings within one week of the cessation of the impediment according to S. 45 of the Code of Criminal Procedure.  The Regional Court accepted the applicant's argument that he had failed to observe the time-limit for lodging the objection against the penal order through no fault of his own.  Though being informed about the conduct of the criminal proceedings against him, he was not obliged to ensure, pending his temporary absence from home, that he would receive service of legal process.  However, the applicant had returned to his place of residence in July 1992 and received the payment order of the Ellwangen Public Prosecutor's Office which, in its heading, expressly referred to the "penal order issued by the Schwäbisch Gmünd District Court of 9 May 1992" (" Strafbefehl des Amtsgerichts Schw . Gmünd vom 9.5.92").  The applicant thus knew that a penal order had been issued against him and the time-limit of one week to apply for a reinstatement in the proceedings started as from that date, i.e. end of July.  The decision was served upon the applicant's counsel on 25 February 1993.

On 23 March 1993 the Ellwangen / Jagst Regional Court dismissed the applicant's request ( Gegenvorstellungen ) of 5 March 1993 to reconsider its decision of 19 February 1993.  In its decision, the Court noted that the notification that the penal order could be collected at the post office had been put into the applicant's letter-box three days after he had left his place of residence; the fact that a letter was returned in July 1992 because his letter-box was overfilled could not, therefore, explain his allegation that the notification had not been in the letter-box when he returned at the end of July 1992.  Moreover, he had known about the institution of criminal proceedings against him as from January 1992 when, according to information given by the local police authorities, he had been summoned three times to appear at the police office, and had finally, in the course of a telephone conversation of 13 January 1992 agreed to pass by at the Feuerbach Police Office.  The decision was received by the applicant's counsel on 25 March 1993.

On 25 May 1993 the Federal Constitutional Court ( Bundes-verfassungsgericht ) refused to admit the applicant's constitutional complaint ( Verfassungsbeschwerde ) on the ground that it offered no sufficient prospect of success.  The Constitutional Court considered in particular that persons who absented themselves from their place of residence not only temporarily and for a short term, i.e. a period of not more than six weeks, but who stayed regularly away from their place of residence, were under an obligation to take particular measures regarding the service of legal process.  Assuming that the applicant could not return more often to his place of residence, he could be expected to lodge a request with the local post office to forward his mail to his temporary address, or to ask a person of his choice to check the contents of his letter-box and inform him about important official mail.  The applicant received the decision on 1 June 1993.

B. Relevant domestic law

SS. 407 et seq. of the Code of Criminal Procedure ( Strafprozeß-ordnung ) provide for the imposition of a penal order, without a trial, in cases concerning minor offences.  Once the case has been allocated to the competent court, the public prosecutor may submit an application for a penal order which must be accepted by the judge if there are no grounds for refusing it, namely having a different legal assessment of the case or wishing to impose a different sentence.

The written penal order shall contain a reference to the fact that the penal order should be final, binding and enforceable if the accused fails to lodge a written objection at the competent court or have such an objection taken down in writing at the court office within two weeks of service.  If the objection is received within the prescribed time-limit, trial proceedings are instituted.  If, however, the accused is prevented from meeting the time-limit through no fault of his own, an application to have the proceedings reinstated must be made within one week of the cessation of the impediment according to SS. 44 and 45 of the Code of Criminal Procedure.

The service of documents, pursuant to S. 37 of the Code of Criminal Procedure, is governed by SS. 181 and 182 of the Code of Civil Procedure ( Zivilprozeßordnung ).  If a document cannot be personally served, it may be deposited, inter alia , at the local post office.  In that case a written notification of deposit must be delivered to the recipient's address in the manner customary in the case of ordinary letters or, if this should be inexpedient, affixed to the door of his home or handed to someone in the neighbourhood to be transmitted to the addressee.

COMPLAINTS

The applicant complains that he was issued with a penal order by the Schwäbisch Gmünd District Court, without having had an opportunity to be heard by a court.  He submits that he was thereby found guilty without his guilt having been proved according to the law.  He also submits that he was prevented from exercising his defence rights, in particular his rights to be informed promptly about the nature and cause of the accusation against him, to have adequate time and facilities for the preparation of his defence , and to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf.  He invokes Article 6 paras . 1, 2 and 3 (a), (b) and (d) of the Convention.

THE LAW

The applicant complains under Article 6 paras . 1, 2 and 3 (a), (b) and (d) of the Convention that he was denied access to a court in the context of criminal proceedings against him.

The Commission recalls that the guarantees contained in paragraph 3 of Article 6 are constituent elements, amongst others, of the general notion of a fair trial (cf. Eur . Court H.R., Hennings judgment of 16 December 1992, Series A no. 251-A, p. 11 para . 25). In the circumstances of the case, whilst also having regard to those guarantees, the Commission will examine the applicant's complaints under paragraph 1, which provides as follows:

"In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by (a) ... tribunal established by law ..."

The Commission considers that penal order proceedings do not affect the right of the accused to a fair hearing before the court, if the accused can effectively object to the penal order and thus bring about normal trial proceedings.

In the present case, the Commission finds that the applicant, who absented himself from his place of residence for a period of altogether almost seven months, could be reasonably expected to ensure the service of legal process in that he returned at regular, shorter, intervals instead of just once at the end of July 1992, or requested the local post office to forward his mail to his temporary address, or entrusted a third person with checking his mail.  In this respect, the Commission notes the findings of the Ellwangen / Jagst Regional Court, in its decision of 23 March 1993, that the applicant, following summonses to appear at the local police station in January 1992 and a telephone conversation with the Feuerbach Police Office in January 1992, was aware that criminal investigations were pending against him.  Moreover, the written notification of deposit of the penal order was, according to the notification form, put into the applicant's letter-box on 13 May 1992, i.e. three days after the applicant had left his place of residence.  His letter-box was recorded as being overfilled only in mid July, when a payment order could not be served and was returned to the Ellwangen / Jagst Public Prosecutor's Office.

The German authorities cannot be held responsible for barring his access to a court because the applicant failed to take the necessary steps to ensure receipt of his mail and was thereby unable to comply with the requisite time-limits laid down under German law (cf. Eur . Court H.R., Hennings judgment, loc. cit., para . 26).

Furthermore, the applicant also had the possibility of seeking reinstatement of the proceedings.  Such a request must be granted if there has been no fault on the part of the person concerned.  However, the Commission, having regard to the findings of the Ellwangen / Jagst Regional Court in its decision of 19 February 1993, finds that the applicant failed to lodge even this request in time, namely within one week after having received, at the end of July 1992, the payment order regarding the fine imposed by the penal order at issue.

In these circumstances, the Commission finds no indication that the applicant was denied his right of access to court.  His submissions do not, therefore, disclose any appearance of a violation of his rights under Article 6 of the Convention.

Consequently, the application is manifestly ill-founded within the meaning of Article 27 of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission      President of the Commission

( H.C. KRÃœGER)       (C.A. NØRGAARD)