FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38082/04 by Ralf KOCH against Germany

The European Court of Human Rights (Fifth Section), sitting on 8 January 2008 as a Chamber composed of:

Peer Lorenzen , President, Snejana Botoucharova , Karel Jungwiert , Rait Maruste , Javier Borrego Borrego , Renate Jaeger , Mark Villiger , judges, and Claudia Westerdiek , Se c tion Registrar ,

Having regard to the above application lodged on 20 September 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ralf Koch, is a German national who was born in 1968 and lives in Nideggen in Germany .

A. The circumstances of the case

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

1. Investigation Proceedings

In January 1998 police officers searched the applicant ’ s premises in order to seize evidence relating to an offence of unlawful assumption of authority allegedly committed by the applicant in December 1997.

In January 1999 the Aachen Public Prosecutor ’ s Office preferred an indictment against the applicant with the Aachen District Court ( Amtsgericht ).

In July 1999 police officers once again searched the applicant ’ s premises in order to seize evidence relating to three counts of falsification of documents allegedly committed by the applicant in December 1998, April 1999 and June 1999.

In November 2001 the Aachen Public Prosecutor ’ s Office preferred an indictment against the applicant with the Aachen District Court.

2. Proceedings before the Aachen District Court

On 14 February 2003 the Aachen District Court, having joined to the proceedings three further indictments relating to criminal offences allegedly committed by the applicant in April 1999, November 2000 and April, May and June 2001, held a hearing during which the applicant was represented by the court-appointed counsel P.

Following the hearing, the Aachen District Court convicted the applicant of three counts of falsification of documents, one count of unlawful assumption of authority in conjunction with attempted coercion, falsification of documents, bodily injury and falsely casting suspicion on an innocent person and four counts of insult and sentenced him to one year and eight months ’ imprisonment, suspended on probation. The District Court considered as mitigating factors that the applicant had made a confession and that some of the offences had been committed many years ago.

3. Proceedings before the Düren District Court

Parallel to these proceedings, public prosecution instituted separate proceedings against the applicant before the Düren District Court for falsification of documents allegedly committed by the applicant in 2002.

On 14 February 2003 the Düren District Court appointed the lawyer W. to represent the applicant during the proceedings before that court. As W. was unable to attend the hearing scheduled for 18 February 2003, the District Court, on that same date, absolved her from her duties.

On 18 February 2003 the District Court convicted the applicant, who was not represented by counsel, of falsification of documents and sentenced him to a fine of 2,000 euros .

4. Proceedings on the applicant ’ s appeal

On 12 May 2003 the Aachen Regional Court ( Landgericht ), in joint proceedings, rejected the applicant ’ s appeal against the judgments of 14 and 18 February 2003 as inadmissible on the ground that the applicant had failed to attend the court hearing held on 12 May 2003.

On 16 May 2003 the applicant applied for the reinstatement of the proceedings. He alleged that he had been unable to attend the court hearing as he had been admitted to intensive care from 11 to 13 May 2003 due to an emergency. In support of his allegations, he named his brother as a witness.

On 23 June 2003 the Aachen Regional Court rejected the applicant ’ s request. It noted that the applicant had failed to submit sufficient information as to the nature of his illness, the name of the treating practitioner or the hospital he had been admitted to, nor had he submitted sufficient evidence supporting his allegations.

On 30 June 2003 the applicant lodged an appeal. In support of his allegations, he submitted a letter by the Aachen University hospital dated 13 May 2003. According to the content of that letter, the applicant had been admitted to intensive surveillance after having complained about having suffered an electric shock while blow-drying his hair. The medical examination did not disclose any abnormalities.

On 5 September 2003 the Cologne Court of Appeal rejected the applicant ’ s appeal. That court considered that the applicant had failed to establish that he had been hindered to attend the court hearing through no fault of his own. The Court of Appeal considered that the hospital letter submitted by the applicant was exclusively based on the applicant ’ s own statement on the alleged electric shock incident and that the medical examination had not disclosed any abnormalities.

5. Proceedings on the applicant ’ s appeal on points of law

On 16 May 2003 the applicant lodged an appeal on points of law against the Regional Court ’ s judgment of 12 May 2003.

On 30 September 2003 the Cologne Court of Appeal ( Oberlandesgericht ) rejected the applicant ’ s appeal as inadmissible on the ground that the applicant had failed to submit the grounds for his appeal within the statutory time-limit of one month. This decision was served on the applicant on 8 October 2003.

On 9 October 2003 the applicant requested to be reinstated in the proceedings. He alleged that the court appointed counsel P. had promised him during a telephone conversation that he would submit the reasons for the appeal on points of law in due time. As means of evidence, the applicant submitted an affidavit given by his brother.

The applicant further requested the court to withdraw the court-appointed counsel P. and to appoint new counsel to submit the reasons for his appeal on points of law.

On 4 November 2003 the Court of Appeal informed the applicant that the case-file had been transferred to the Regional Court to rule on his request to appoint fresh counsel.

On 26 November 2003 the Aachen Regional Court rejected the applicant ’ s request to appoint fresh counsel on the ground that the applicant ’ s appeal on points of law lacked prospect of success.

On 8 December 2003 the applicant, represented by counsel W., requested the Court of Appeal to grant him a fair hearing and to re-open the appeal proceedings.

On 13 January 2004 the Cologne Court of Appeal rejected the applicant ’ s request to have the proceedings reinstated as being inadmissible. Having regard to the differing submissions made by counsel P., the Court of Appeal considered that the applicant had failed sufficiently to establish that P. had promised him that he would submit reasons for his appeal.

In any event, the applicant ’ s request was inadmissible as the applicant had failed to submit the grounds for his appeal, either through counsel or personally at the court ’ s registry, within the time-limit of one week set down in section 45 of the Code of Criminal Procedure (see relevant domestic law, below).

The Cologne Court of Appeal further rejected the applicant ’ s request to re-open the proceedings on the ground that the applicant ’ s right to a fair hearing had not been violated.

6. Proceedings before the Federal Constitutional Court

On 26 February 2004 the applicant lodged a constitutional complaint in which he complained about the conduct and the length of the proceedings before the criminal courts. On 21 May 2004 the Federal Constitutional Court , sitting as a panel of three judges, refused to accept his complaint for adjudication.

B. Relevant domestic law and practice

1. The right to expeditious proceedings

Article 2 § 1 of the German Basic Law in conjunction with the principle of the Rule of Law guarantees the right to expeditious proceedings. According to the settled case-law of the Federal Constitutional Court , the courts and the prosecuting authorities are called upon to draw the consequences of the length of proceedings at any stage of the proceedings. Their possibilities include inter alia the discontinuation of the proceedings pursuant to sections 153 and 153a of the Code of Criminal Procedure, the limitation of the proceedings according to sections 154 and 154a of the Code of Criminal Procedure or a reduction of the sentence (see, among others, the decision of 24 December 1983 (no. 2 BvR 121/83); the decision of 19 April 1993 (no. 2 BvR 1487/90); the decision of 21 January 2004, no. 2 BvR 1471/03, Reports of Chamber Decisions ( BVerfGK ) no. 2, pp. 239 et seq.; the decision of 21 June 2006, nos. 2 BvR 750/06, 752/06 and 761/06).

2. The relevant provisions of the Code of Criminal Procedure

(a) Appeal on points of law

Section 341 [form and time l imit]

“1. The appeal on points of law shall be filed with the court whose judgment is being contested either orally to be recorded by the registry or in writing within one week a fter pronouncement of judgment.

2. If pronouncement of judgment did not take place in the defendant ’ s presence, the time limit in respect of the defendant shall begin to run upon service of the judgment. ”

Section 345 [time limit for stating grounds]

“1. The motions together with the grounds therefor shall be submitted to the court whose judgment is being contested no later than one month after expiry of the time limit for seeking the appellate remedy. If the judgment has not been served by then, the time limit shall commence upon service thereof.

2. The defendant may only do this in the form of a notice signed by defence counsel, or orally to be recorded by the court registry.”

(b) Reinstatement of the proceedings

Section 45 [request for reinstatement of the proceedings]

“1. The request for reinstatement of the proceedings shall be filed...within one week after cessation of the impediment (...).

2. The facts justifying the request shall be substantiated at the time the request is filed or during the proceedings on the request. The omitted act shall be undertaken within the time limit for filing the request (...).”

COMPLAINTS

1. The applicant complained under Article 6 § 1 of the Convention about the length of the preliminary investigations and of the subsequent criminal proceedings.

2. The applicant further complained under Article 6 of the Convention that he had been denied a fair trial. In particular, he complained about having been coerced into making a confession before the Aachen District Court, about having been denied representation by counsel before the Düren District Court, and about having been denied access to the appeal courts. He further alleged that the court-appointed counsel P. had failed properly to represent his interests. Finally, he alleged that the proceedings before the Aachen District Court had been predetermined even before the hearing of his case had taken place.

3. Invoking Article 2 of the Convention, the applicant further complained that he would have risked potentially life-threatening complications if he had left the hospital in order to attend the hearing before the Regional Court .

THE LAW

1. The applicant complained about the length of the criminal proceedings as well as about their alleged unfairness. He relied on Article 6 § 1 of the Convention, the relevant parts of which provide:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal ...

He further invoked Article 2 § 1 of the Convention, which reads as follows:

“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”

The Court observes at the outset that the applicant was convicted at first instance on 14 and 18 February 2003 respectively. His appeal was rejected on 12 May 2003 and his attempts to have these proceedings reinstated were to no avail. On 30 September 2003, the Cologne Court of Appeal rejected his appeal on points of law. The ensuing proceedings before the Court of Appeal were aimed at having those proceedings reinstated or re-opened. In these circumstances, the question arises whether the applicant complied with the six-month time-limit, when lodging his application with the Court on 20 September 2004.

However, the Court does not have to resolve this matter, because the application is in any event inadmissible on the ground that the applicant failed to exhaust the remedies available to him under German law, in accordance with Article 35 § 1 of the Convention. The Court reiterates that the purpose of the exhaustion rule is to afford the Contracting States the opportunity to prevent or put right the alleged violations of the Convention. Thus, the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V).

As regards the effectiveness of a complaint for contesting the length of the proceedings, the Court recalls its recent case-law that German law provides adequate redress for the excessive length of criminal proceedings upon a defendant ’ s appeal through the possibility to mitigate the sentence or even to discontinue the proceedings on account of their length (see Weisert v. Germany (dec.), no. 14374, 3 April 2007 and Schenk v. Germany (dec.), no. 42541/02, 9 May 2007, both with further references). The Court therefore considers that the applicant had effective remedies to obtain redress for the alleged delays in the proceedings.

It remains to be determined whether the applicant has made use of these remedies in accordance with the formal requirements of the procedural law. In this respect, the Court notes that the Aachen Regional rejected the applicant ’ s appeal on the ground that the applicant had failed to attend the relevant court hearing. The applicant ’ s request to have these proceedings reinstated was rejected on the ground that he had failed to establish that he had been prevented from attending the hearing through no fault of his own.

On 30 September 2003 the Cologne Court of Appeal rejected the applicant ’ s appeal on points of law on the ground that the applicant had failed to submit the grounds for his appeal within the statutory time-limit of one month. The applicant ’ s fresh request for reinstatement of those proceedings was rejected by that same court on the ground that the applicant had still not submitted the reasons for his appeal.

Even assuming that the Regional Court , when rejecting the applicant ’ s first request for reinstatement of the proceedings, had imposed excessive procedural demands on the applicant, the Court observes that the applicant could have amended any procedural shortcomings by lodging his appeal on points of law in accordance with the formal requirements imposed by the domestic law.

The Court observes, however, that the applicant did not comply with these requirements as he failed to submit the grounds for his appeal on points of law within the statutory time-limit and did not redress this omission when lodging his second request to be reinstated in the proceedings. The Court takes note of the fact that the applicant, when lodging his second reinstatement request on 9 October 2003, requested the domestic courts to appoint fresh counsel in order to submit the reasons for his appeal. The Court observes, however, that representation by counsel was not obligatory in this respect, as the applicant could have submitted the grounds for his appeal on points of law personally to the court ’ s registry. Furthermore, the applicant has not established that he had been unable to commission another counsel on his own motion.

In these circumstances, the criminal courts were not offered any opportunity to examine the applicant ’ s complaints made in his application to the Court, in particular his complaint about the length of the criminal proceedings against him, and to draw any conclusions concerning the sentence.

Accordingly, the Federal Constitutional Court could not review whether the criminal courts had duly taken account of the length of the criminal proceedings when metering out the sentence imposed upon the applicant.

Under these circumstances, the Court considers that the applicant has failed to submit the substance of his complaints in accordance with the formal requirements of domestic law. It follows that he has failed to exhaust domestic remedies in this respect.

2. As regards the applicant ’ s complaint about having been denied access to the appeal courts, the Court reiterates its established case-law that Article 6 § 1 does not guarantee a right of appeal as such. However, where several levels of jurisdiction do exist, each instance must comply with the guarantees of Article 6, including the right of effective access to court (see Brualla Gómez de la Torre v. Spain , judgment of 19 December 1997, Reports of Judgments and Decisions 1997-VIII, p. 2956, § 37). Moreover, appellants must be able to exercise usefully the rights of appeal available to them (see Hadjianastassiou v. Greece , judgment of 16 December 1992, Series A no. 252, p. 16, § 33 and Marpa Zeeland B.V. and Metal Welding B.V. v. the Netherlands , no. 46300/99, § 48 , ECHR 2004 ‑ X).

Having regard to the reasons set out above, the Court considers that the applicant had not been prevented from exercising his rights to appeal, but had failed to comply with formal requirements laid down in the domestic law, which did not impair the essence of the right to a court.

It follows that this part of the complaint has to be regarded as manifestly ill-founded within the meaning Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

             Claudia Westerdiek P eer Lorenzen Registrar President