Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12304/86

by K.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 21 January 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. H.C. KRÜGER 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 4 April 1986 by

K. against the Federal Republic of Germany and registered on 4 August

1986 under file No. 12304/86;

Having regard to

- the observations submitted by the respondent Government on

27 February 1987 and the observations in reply submitted by

the applicant on 28 April 1987;

- the parties' submissions at the oral hearing of 21 January 1988;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the parties, may be

summarised as follows:

The applicant, a German citizen born in 1932, is a businessman

residing in Berlin. Before the Commission he is represented by

Messrs Kärgel, Poggendorf, Beuermann and Stoecker, lawyers practising

in Berlin. The present application was signed by Mr Stoecker.

On 14 September 1983 the applicant, who runs a chemicals

factory, was convicted by the Tiergarten District Court (Amtsgericht)

of attempted water pollution and environmentally harmful waste

disposal and sentenced to nine months' imprisonment. However, the

execution was suspended for a probationary period of two years.

The applicant's appeal (Berufung) against this judgment was

rejected by the Berlin Regional Court (Landgericht) on 23 May 1985.

The lawyer who had defended the applicant before the Regional

Court then lodged an appeal on points of law (Revision). Thereafter,

the applicant charged Mr Kärgel, of the above law firm, to represent

him in the appeal proceedings.

On 23 August 1985, the last day before the expiry of the

time-limit, Mr Kärgel submitted the grounds for the appeal on points

of law. Counsel generally alleged a violation of substantive law and

added he would submit further arguments which he had not yet been able

to formulate as he had been charged with the case only shortly before.

The statement was signed by Mr Kärgel himself with the typewritten

supplement underneath the signature: "counsel" (Rechtsanwalt).

On 17 October 1985 the Court of Appeal (Kammergericht)

declared the appeal inadmissible on the ground that the statement of

23 August 1985 had not been correctly signed. The signature did not

reveal the identity of the person who had signed the statement and

therefore did not meet the requirements of Section 345 para. 2 of the

Code of Criminal Procedure (Strafprozessordnung - StPO) as interpreted

by the German courts. Accordingly the statement was found to be

without legal effect.

On 1 November 1985, Mr Stoecker, another lawyer of the same

law firm, who had officialy been appointed as Mr Kärgel's

representative, requested leave to appeal out of time (Antrag auf

Wiedereinsetzung gegen die Versäumung der Revisionsbegründungsfrist).

The request was signed by Mr. Stoecker. His name was added in

typewriting under his signature.

On 14 November 1985 the Court of Appeal rejected this request

as being inadmissible on the ground that the application was likewise

not correctly signed and did not meet the legal requirements.

On 28 November 1985, the applicant's lawyers made a second

request for leave to appeal out of time. This request was signed by Mr

Kärgel with the typewritten supplement "Kärgel - Rechtsanwalt".

Furthermore, counsel had added his name in parenthesis ("Kärgel") and

in handwriting underneath his signature with every letter written out

legibly.

This request was rejected as inadmissible by the Court of

Appeal on 23 December 1985, again for not having been signed in

accordance with the legal requirements.

On 21 January 1986, the applicant's defence counsel filed a

third request for leave to appeal out of time. He also challenged the

impartiality of the judges concerned of the Court of Appeal. This

challenge was rejected on 10 April 1986 by a unanimous decision of the

challenged judges for pursuing abusive purposes. The request for

reinstatement was declared inadmissible as being lodged out of time.

COMPLAINT

The applicant complains that the Court of Appeal by

establishing too rigid requirements for the validity of his lawyers'

signatures built up unjustified barriers and prevented the merits of

his appeal on points of law from being heard in a fair manner.

The applicant invokes Article 6 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 4 April 1986 and registered

on 4 August 1986.

On 2 December 1986, the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on its admissibility and merits

pursuant to Rule 42 para. 2(b) of the Rules of Procedure.

The respondent Government's observations were submitted on

27 February 1987 and the applicant's reply thereto on 28 April 1987.

On 7 October 1987 the Commission decided to hold an oral

hearing on admissibility and merits. This hearing took place on

21 January 1988. At the hearing the Government were represented by

Mr. J. Meyer-Ladewig, Agent, Ministerialdirigent of the Ministry of

Justice, who was assisted by Mr. H. Stöcker, Ministerialrat of the

Federal Ministry of Justice. The applicant was represented by

Mr. D. Stoecker.

SUBMISSIONS OF THE PARTIES

A. The respondent Government

I. As to the exhaustion of domestic remedies

The Government point out that the applicant had the

possibility to request leave to appeal out of time. In fact such a

request was filed. However, Mr. Stoecker, representing the

applicant's defence counsel, repeated the same mistake as had been

made by Mr. Kärgel, the consequences of which were to be removed by

this request; the statement submitted by him showed a handwritten mark

consisting of two scrawls which did not include a single legible

letter of his name.

In the Government's opinion the requests for leave to appeal

out of time were deliberately not signed in a manner required by the

Court of Appeal.

This could be considered to constitute an abuse of the right

of petition and also raised the question as to whether domestic

remedies had been exhausted in an effective manner.

II. As to the complaint under Article 6 para. 1 of the Convention

In any event the applicant's complaint was manifestly

ill-founded.

Under the relevant provisions of the German Code of Criminal

Procedure the grounds for an appeal on points of law must be lodged

within a certain time-limit. Section 345 para. 2 of the Code of

Criminal Procedure further requires that the grounds of appeal are

submitted in "a document signed by the defence counsel or a lawyer".

According to German case-law and doctrine a signature need not

be legible. It must however consist of characters which sufficiently

reveal the identity of the undersigned. Individual letters must at

least be recognisable. There must be an individual form of

handwriting, which is unique, shows appropriate characteristic

features and appears as the signature of a name, so that a third

person, knowing the name, is able to recognise it when seeing the

signature.

These requirements do serve legal certainty. As regards

statements of particular importance, the undersigned assumes full

responsibility for the content of the statement. A "signature"

consisting of geometrical figures, marks and squiggles which does not

reveal a single letter is not conform to these requirements.

It was of no relevance to compliance with a formal provision

such as Section 345 para. 2 of the Code of Criminal Procedure whether

the author of an illegible handwriting could be identified by other

appropriate means.

The respondent Government point out that Article 6 of the

Convention does not prevent the Contracting States from making access

to existing domestic remedies dependent on certain conditions by means

of statutory rules. To this extent the Commission's task is limited to

examining whether there has been abuse. The provisions regarding

signature of specific statements could not be seen as arbitrarily

limiting access to appellate courts, nor could their strict

interpretation and application by German courts. A lawyer could

without difficulty abide by these requirements.

Moreover, an accused whose lawyer inadvertently signed an

appeal or the grounds for an appeal in an insufficient manner had the

possibility to mend this error by requesting leave to appeal out of

time. Of course, such a request had to be signed in a correct manner.

This was not at all impossible for the applicant's defence counsel. If

need be, an accused could submit the motions for appeal and the

statement of the reasons to the court of appeal even without the

assistance of a lawyer by having them recorded by the registry.

The Berlin Court of Appeal whose decision was complained of in

the instant case did nothing but to apply the law in force.

Rechtsanwalt Kärgel did not "sign" his written pleadings of 23 August

1985, but made a mark on it which resembled a graph curve that did not

reveal a single letter of his name. This mark did clearly not meet

the requirements of Section 345 para. 2 of the Code of Criminal

Procedure.

The 4th Criminal Division of the Berlin Court of Appeal had in

recent years been obliged in numerous cases to reject appeals as

inadmissible because they were not correctly signed by defence

counsel. The law firm involved in the present case already represented

another applicant in an analogous application (Appl. No. 10685/83)

which was declared inadmissible for non-observance of the six months

time-limit. This showed that the lawyers concerned were familiar with

the appellate court's interpretation and application of Section 345

para. 2 of the Code of Criminal Procedure but choose not to abide

by it while other lawyers accepted to sign their submissions to the

Court of Appeal in a manner meeting the strict requirements of that

Court.

The fact that the validity of Mr. Kärgel's signature as a

notary public had never been called in question was of no relevance to

the case under consideration. Written pleadings under Section 345

para. 2 of the Code of Criminal Procedure had to be distinguished

from notarial instruments. In a notarial instrument the name of the

authenticating notary is expressly mentioned in the introduction,

whereas in the case of an illegible signature on the letter of a law

firm consisting of several partners it is not possible to tell which

of the lawyers has signed the letter and bears responsibility for it.

Besides, authentication of private legal transactions by a notary did

not affect the specific public interests that control an appeal in

criminal matters.

The respondent Government accordingly ask the Commission to

declare the application inadmissible for non-exhaustion of domestic

remedies or, alternatively, as being manifestly ill-founded.

B. The applicant

I. As to the exhaustion of domestic remedies

The applicant points out that the previous application (No.

10685/83) referred to by the respondent Government was rejected for

non-observance of the six months' rule (Article 26 of the Convention),

because the Commission considered that a request for leave to appeal

out of time was not an effective remedy that delayed the running of

the six months' time-limit.

The applicant contests the Government's suggestion that his

requests for leave to appeal out of time had deliberately been signed

by his defence counsel in a manner unacceptable to the Court of

Appeal. He submits that his counsel signed these requests as he

usually signs all documents.

II. As to the complaint under Article 6 para. 1 of the Convention

The applicant maintains that the Court of Appeal applied

Section 345 para. 2 of the Code of Criminal Procedure in a way

contrary to Article 6 para. 1 of the Convention.

The only issue relevant to the application of this provision

was whether the author of a statement who by signing the document

concerned assumed responsibility for its contents can be identified.

Therefore a defence counsel had to use his usual signature which is

characteristic for him.

It would be contrary to the concept of legal certainty to

request the defence counsel to use a different signature in his

submissions to the Court of Appeal only. Signing a document with a

different signature would indicate that the defence counsel did not

assume responsibility for the statement concerned.

Applicant's counsel submits that mainly the Fourth and also

the Third Division of the Court of Appeal often reject appeals as

being inadmissible for not having been correctly signed. The

applicant refers to a newspaper article published in November 1983

from which it appears that this practice of some divisions of the

Court of Appeal was a matter of debate and criticism in the Legal

Committee of the Berlin Diet (Abgeordnetenhaus). It is submitted that

neither Mr. Kärgel nor Mr. Stoecker have ever encountered difficulties

with other divisions of the Court of Appeal in civil or criminal

matters or with the Federal Court of Justice.

The applicant finally draws attention to the fact that Mr.

Kärgel's signature has never been subject to criticism whilst acting

in his capacity as notary public. The office of a notary public is a

public office and consequently affects public interests at least in

the same way as an appeal in criminal matters.

Furthermore, in the instant case the name of the undersigning

lawyer was typewritten under the signature in several of the

statements concerned.

THE LAW

The applicant complains under Article 6 (Art. 6) of the

Convention that he was deprived of his right to a fair hearing of his

appeal on points of law because this appeal was dismissed as being

inadmissible by the Berlin Court of Appeal for not having been signed

correctly by his defence counsel.

Article 6 para. 1 (Art. 6-1) of the Convention secures to

everyone charged with a criminal offence the right to a fair and

public hearing. This right includes the right of access to a court

(Eur. Court H.R., Golder judgment of 7 May 1975, Series A no. 18, p.

18 para. 36, and Ashingdane judgment of 28 May 1985, Series A no. 93,

p. 24 para. 55). It is further recognised that the guarantees of

Article 6 (Art. 6) of the Convention do also apply to appeal

proceedings once a Contracting State has set up courts of appeal (Eur.

Court H.R., Delcourt judgment of 17 January 1970, Series A no. 11, p.

13 para. 25 and Axen judgment of 29 June 1982, Series A no. 72, p. 12

para. 27).

The Government first argue that the Commission is prevented

from examining the merits of the applicant's complaint because his

defence counsel failed to sign the requests for leave to appeal out

of time in the way prescribed by law and that consequently domestic

remedies were not effectively exhausted. The Commission considers

however that the question of whether or not the applicant's appeal on

points of law and also his subsequent requests for leave to appeal out

of time were correctly signed by counsel is closely related to the

substance of the applicant's complaint. In these particular

circumstances the applicant can be considered to have exhausted

domestic remedies.

As to the merits the Commission first recalls that according

to its case-law Article 6 (Art. 6) does not debar Contracting States from

making regulations governing the access of litigants to an appellate

court as long as such regulations do not arbitrarily limit access to such

court (No. 727/60, Dec. 5.8.60, Yearbook 3 p. 302 [308]; No. 8407/78,

Dec. 6.5.80, D.R. 20 p. 179 [180]).

The requirement established by Section 345 para. 2 of the

German Code of Criminal Procedure that an appeal on points of law has

to be signed by the defence counsel or another lawyer does not in

itself unduly restrict an accused's right to lodge an appeal, as was

not contested by the applicant. The interpretation of this provision

by the German courts, that a signature need not be legible but must

present certain characteristic features in order to have legal effect,

can likewise not, in principle, be considered as arbitrary.

The question whether or not in a given case a signature

presents such characteristics and conforms with the requirements of

Section 345 para. 2 of the German Code of Criminal Procedure is a matter

that has to be decided by the national courts. The Commission's

supervision is limited to an examination as to whether the interpretation

and application of the provision in question might have involved a

violation of any of the rights and freedoms set out in the Convention,

in particular of Article 6 (Art. 6) of the Convention as alleged by the

applicant.

The applicant argues that he was deprived of a fair hearing of

his appeal on points of law because the Court of Appeal arbitrarily

considered that the appeal was not correctly signed by his defence

counsel. The Commission recognises that from some lawyers' point of

view the decisions complained of in the present case may appear to be

excessively formalistic.

Nevertheless, however regrettable the appellate court's rigid

application of Section 345 para. 2 of the German Code of Criminal

Procedure may be, it cannot be found that the applicant was thereby

denied access to this court. In fact, according to the uncontested

submissions of the respondent Government, the applicant would have

been granted leave to appeal out of time had his defence counsel

signed at least the request for such leave in conformity with the

requirements of German law as interpreted by the Court of Appeal.

Counsel had every reason to do so as he knew that the Court of Appeal

considered his habitual signature as a squiggle that did not comply

with the requirements of Section 345 para. 2 of the German Code of

Criminal Procedure. In the applicant's interest, he could therefore

have signed the request for leave to appeal out of time in a way which

would satisfy the Court. It has not been alleged by the applicant

that such a request would have been rejected.

In these circumstances it cannot be found that the Berlin

Court of Appeal applied Section 345 para. 2 of the German Code of

Criminal Procedure in such a manner as to deprive the applicant

arbitrarily of any possibility to have the merits of his appeal on

points of law decided by that Court.

It follows that the application must be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2 (Art.

27-2) of the Convention.

For these reasons, the Commission

&_DECLARES THE APPLICATION INADMISSIBLE.&S

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C. A. NØRGAARD)

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K. v. the FEDERAL REPUBLIC OF GERMANY

K. v. the FEDERAL REPUBLIC OF GERMANY

LEXI