FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30203/03 by Wolfgang WEBER against Germany

The European Court of Human Rights (Fifth Section), sitting on 2 October 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr K. Jungwiert , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mrs R. Jaeger , Mr M. Villiger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 25 August 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Wolfgang Weber, is a German national who was born in 1935 and lives in Estancia Campo ’ i Filadelfia, District Chaca ( Paraguay ). He was represented before the Court by Mr U. Grammel, a lawyer practising in Stuttgart .

A. The circumstances of the case

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

1. Factual background

Until 1992 the applicant was the executive president ( Vorstandsvorsitzender ) of a public limited company , Südmilch AG, which collapsed in 1993. When the Stuttgart Public Prosecutor ’ s Office instituted criminal proceedings against the applicant on suspicion of breach of trust and falsification of a balance sheet, the applicant left Germany and moved to Paraguay . During the criminal proceedings, the applicant was interrogated on 30 January 1997 by the consular service ( konsularische Vernehmung ) of the German Embassy in Asunción. On 9 January 1998 the Stuttgart Public Prosecutor ’ s Office discontinued the criminal proceedings against him . During these proceedings t he applicant had been represented by a lawyer , W, practising in Stuttgart .

2. Proceedings related to the issuing of the default judgment

On 30 August 1996 a creditor company brought a civil action for damages against the applicant personally before the Stuttgart Regional Court , claiming damages of three million DEM.

On 23 October 1996 the Regional Court lodged a request to serve the writ on the applicant through the German diplomatic service ( Zustellungsantrag im Wege der Rechtshilfe ).

O n 30 January 1997 the German Embassy in Asunción made an attempt to serve the writ directly on the applicant following his interrogation in the criminal proceedings. According to the Embassy the applicant refused to permit his lawyer W to accept the writ. According to the applicant, only W was informed of the writ, but the lawyer declined to accept it and consequently the applicant was not aware of the writ.

Subsequently, the Embassy referred the request to the Paraguayan authorities for action , but the latter did not execute the request for service.

O n 27 February 1998 the plaintiff requested the Regional Court to serve the writ by public notification ( öffentliche Zustellung ) referring to information from the Embassy according to which attempts to serve documents in Paraguay usually failed because the Paraguayan authorities remained inactive.

As it was not possible to have the writ served by the Paraguayan authorities , o n 5 March 1998 the Regional Court ordered service of the writ by public notification in the Federal Bulletin and on the court ’ s notice board. I t fixed a two-month time-limit for entering a notice of defence.

On 2 April 1998 the writ was published in the Federal Bulletin. Between 24 March 1998 and 8 April 1998 it was posted on the court ’ s notice board.

On 2 July 1998 the two-month time-limit set by the Regional Court for entering a notice of defence elapsed without any reaction from the applicant.

On 7 July 1998 the Regional Court ordered the applicant by way of default judgment to pay the plaintiff damages amounting to three million DEM and fixed a two-month time-limit for filing objections ( Einspruchsfrist ).

On 15 July 1998 the judgment was served by public notification on the court ’ s notice board. It became final on 30 July 1998. The two-month time-limit fixed by the Regional Court for filing objections elapsed on 30 September 1998.

By letter of 27 July 1999 , the applicant ’ s lawyer W asked the plaintiff ’ s lawyer about the civil proceedings. On 2 August 1999 he was informed that the civil proceedings had ended a year earlier with the default judgment.

3 . Objection and application for reinstatement of the proceedings

On 28 June 2000 the applicant lodged an objection against the default judgment before the Stuttgart Regional Court and requested reinstatement of the proceedings . The applicant argued that the Regional Court had no right to serve the judgment by public notification within the meaning of Section 203 § 2 of the Code of Civil Procedure. As the Regional Court knew his address it should have served the judgment by postal service in terms of Section 175 of the Code of Civil Procedure. On 9 August 2000 the applicant ’ s lawyer W stated that he did not wish to challenge the validity of the public notification of the writ , which in his view had been erroneous but valid ( er wende sich “nicht gegen die obschon fehlerhafte, aber trotzdem wirksame öffentliche Zustellung der Klagschrift”). H is complaint was limited to a challenge to the validity of the public notification of the default judgment.

On 13 September 2000 the Regional Court rejected the applicant ’ s objection on the ground that the judgment had been validly notified (by public notification), and that the public notification itself had been valid. The Regional Court found that there had been no entitlement to postal service according to Section 175 of the Code of Civil Procedure as it was for the court, in its discretion, to select the method of service ( pflichtgemäßes Ermessen ) once the conditions set out in Section 203 § 2 of the Code of Civil Procedure had – as in the applicant ’ s case - been satisfied. It opted for service by public notification because postal service was disadvantageous to the applicant . Thus, Section 175 § 1 sentence 3 of the C ode of Civil Procedure provided that the relevant time - limit started to run from the day on which the judgment had been posted. It was therefore likely that the time-limit for lodging an objection would have elapsed before the applicant received the default judgment. Moreover , postal service would be invalid if it transpired that the defendant ’ s address had been incorrect. In such a case the court would have to re -serve by way of postal service , which was neither in the plaintiff ’ s interest nor in the interest of legal certainty.

At the same time, the Regional Court rejected the applicant ’ s request for reinstatement because the applicant had failed to comply with Section 234 § 3 of the Code of Civil Procedure as he had lodged his application for reinstatement only on 28 June 2000, which was far more than one year after the expiry of the time-limit for objections on 30 September 1998. Moreover, the applicant had failed to comply with the two-week time-limit to lodge his request for reinstatement ( Wiedereinsetzungsfrist ) within the meaning of Section 234 § 1 of the Code of Civil Procedure. The court noted that on 2 August 1999 W had been informed that the civil proceedings had ended a year earlier with the default judgment. Therefore, the applicant should have lodged his request f or reinstatement in August 1999.

Finally, the Regional Court pointed out that the applicant had missed the time-limits through his own fault. It considered that the applicant had been aware of the civil proceedings and the default judgmen t. Thus, the German Embassy had tried to hand the writ over to the applicant at the end of his interrogation in the German Embassy during the criminal proceeding, but he had refused to accept it himself and had forbidden to serve it on his lawyer W. E ven if only W was informed of the writ on 30 January 1997, as submitted by the applicant, W was known to the court as a very diligent lawyer who would have informed the applicant about the existence of the civil proceedings even if he had only been mandated for the criminal proceedings. Therefore the applicant failed to comply with the requirement of Section 174 § 2 of the Code of Civil Procedure to appoint a person for service ( Zustellungsbevollmächtigten ) to ensure the receipt of his mail.

On 30 March 2001 the Stuttgart Court of Appeal rejected the applicant ’ s appeal for the following reasons:

First, the conditions for public notification in terms of Section 203 § 2 of the Code of Civil Procedure had been satisfied , given in particular that service abroad had proved to be impossible due to the Paraguayan authorities ’ lack of cooperation in dealing with requests for service of judicial do cuments . In this respect the Court of Appeal referred to the unsuccessful attempt of the Regional Court to serve the writ on the applicant through the diplomatic service and to the German Embassy ’ s communication of 30 January 1997 which confirmed that requests to serve documents were often not executed by the Paraguayan authorities.

Secondly, it found that the Regional Court had reasonably exercised its discretion to decide upon the type of service by striking a fair balance between the competing interests of legal certainty and the plaintiff ’ s right to have justice administered ( Justizgewährungsanspruch ), on the one hand, an d the applicant ’ s right to fair trial, on the other hand. Thus, postal service would have excluded the application of Section 339 § 2 of the Code of Civil Procedure and, hence, the possibility to apply a longer time- limit to lodge objections against the default judgment than the two-week time-limit provided for by Section 339 § 1 of the Code of Civil Procedure. B oth service by public notification and postal service contained an assumption that the documents had been duly served ( Zustellungsfiktion ). However, postal service entailed the additional risks for the plaintiff that the defendant ’ s address was incorrect or that the latter had changed his residence. In circumstances as in the present case where the defendant deliberately left Germany and moved to a country which did not cooperate with Germany in judicial matters , it would be unfair to burden the plaintiff , who had no opportunity to verify the correctness of the defendant ’ s address, with that risk.

Thirdly, the Court of Appeal re lied on the Embassy ’ s information according to which the applicant had refused to permit his lawyer W to accept the writ. T hus, the applicant had been aware of the civil proceedings and could have participate d in the m . Moreover, the Court of Appeal emphasized that the applicant produced the difficult situation himself by moving to a non-cooperative country without complying with his procedural obligation under Section 174 § 2 of the Code of Civil Procedure to appoint a person for service and, hence, to ensure the receipt of his legal documents.

On 11 March 2002 the Federal Court of Justice dismissed the applicant ’ s further appeal. It argued that the applicant could not invoke a violation of his right to be heard because he had explicitly accept ed the validity of the writ ’ s service by letter of 9 August 2000 . In doing so he must be treated as if he had had the opportunity to appoint a person for service in terms of Section 174 of the Code of Civil Procedure.

On 18 February 2003 the Federal Constitutional Court refused to admit the applicant ’ s constitutional complaint without giving any reasons.

B. Relevant domestic law and practice

1. The Code of Civil Procedure

Sections 174 et seq. of the Code of Civil Procedure as in force at the material time governed the service of legal documents. Pursuant to Section 174 § 2 of the Code of Civil Procedure parties residing abroad were required to designate a person for service if they had no authorised legal representative who resided within the judicial district of the trial court. If the party failed to do so, the document could be served by post. In that case Section 175 § 1 sentence 3 of the Code of Civil Procedure provided that the document was deemed to have been served at the moment in which it was delivered to the post office. According to the case law of the Federal Court of Justice (see decision of 10 November 1998, no. VI ZR 243/97) the presumption of service ( Zustellungsfiktion ) did not apply in cases where the address of the recipient had been incorrect or incomplete.

Section 199 et seq. of the Code of Civil Procedure as in force at the material time governed the service of documents abroad. As a general rule a court ’ s request for service abroad of a judicial document should be effected either directly by the competent authority of the state addressed or through the diplomatic channel. Section 203 § 2 of the Code of Civil Procedure provided for that the document might be served by public notification ( öffentliche Zustellung ) if the service abroad had either proved impossible or was unlikely to be successful. Instead of ordering service by public notification, the domestic courts could, acting within their discretion , decide to serve the document by postal service pursuant to Section 175 § 1 of the Code of Civil Procedure. According to Section 206 of the Code of Civil Procedure a writ was considered to have been served one month after the public notification in the Federal Bulletin; a judgment was deemed to have been served two weeks after the notification on the court ’ s notice board.

Section 233 et seq. of the Code of Civil Procedure govern the reinstatement of proceedings. Section 233 of the Code of Civil Procedure provides that the r einstatement of the proceedings is granted where person s , through no fault of t he i r own, are prevented from complying with inter alia the time-limit for lodging an objection against a default judgment or for requesting the reinstatement of the proceedings. Pursuant to Section 234 §§ 1, 2 of the Code of Civil Procedure the application for reinstatement of the proceedings must be made within two weeks from the moment in which the party becomes aware or should have become aware of the non-compliance with the respective time-limit. Section 234 § 3 of the Code of Civil Procedure precludes applications for reinst atements which are made more than one year after the relevant time-limit , such as the time-limit for lodging objections, had elapsed.

Section 339 § 1 of the Code of Civil Procedure provides that the two-week time-limit for lodging objections against default judgments starts to run with the service of the judgment. According to Section 339 § 2 the court fixes a time-limit for lodging objections if the service has to be effected abroad or by public notification.

2. Rules as to the service abroad of ju dicial documents in Paraguay

Paraguay is not a party to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, nor is there any bilateral agreement on the service of judicial documents between Paraguay and Germany . In the absence of any such agreement, requests for legal assistance from Germany are executed on the basis of reciprocity in Paraguay .

The German administrative rules on mutual assistance in civil and commercial matters ( Rechtshilfeordnung für Zivilsachen ) provide guidelines for the domestic courts on how to deal with requests for mutual legal assistance. They also contain a country section which reports on the specific situation in the different States, including Paraguay .

According to these rules, a German court which wishes to serve a document on a party in Paraguay may send a request through the diplomatic channel. Such request shall be sent to the German Embassy in Asunci ó n which will refer the request to the Paraguayan authorities for action. Members of the German Embassy are allowed to serve documents directl y, i.e. without the involvement of the Paraguayan authorities, either on persons who reside in Asunció n or on persons residing outside the capital if the service may be effected on a representative ( Vertrauensperson ). The administrative rules also allude to the long periods of time needed for the execution of such requests in Paraguay .

COMPLAINTS

1. The applicant complained under Article 6 § 1 of the Convention that he had been denied the right to adversarial proceedings because the Stuttgart Regional Court had failed to serve either the statement of claim or the judgment on his address in Paraguay. He alleged that he had mandat ed W only for the criminal proceedings, and not for the civil proceedings. Therefore, he was unaware of the proceedings and had no genuine opportunity to respond to the plaintiff ’ s observations . Finally, he did not know about the default judgment and was therefore prevented from complying with the time-limits to lodge an objection and to request the reinstatement of the proceedings.

2. The applicant further complained under Article 6 § 1 of the Convention that the Federal Court of Justice had rend ered a surprise decision as the court ’ s interpretation of his submissions had been unforeseeable and because he was not given the opportunity to comment on this issue.

THE LAW

1. The applicant complained about the court ’ s failure to serve the writ or the default judgment on his address in Paraguay . In his contention, the national courts had thereby failed to observe the adversarial principle, in breach of his right to a “fair hearing” as guaranteed by Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:

"In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ...by [a] tribunal ... "

The Court notes that both the writ and the default judgment were served on the applicant by public notification, which entails a presumption under German law that the document was duly served irrespective of the question as to whether the recipient in fact received the document.

Thus, public service of a writ may mean that the defendant will not, or will only accidentally, become aware of the proceedings, and may deprive him of the possibility to defend himself during the proceedings preceding the judgment and, hence, interfere with the right to a fair trial (see, Babunidze v. Russia, (dec.) no. 3040/03, 15 May 2007, where the failure to serve a summons to a hearing was analysed in terms of fair trial). Public service of a judgment, on the other hand , might prevent defendants from complying with the relevant time-limits to request a fresh consideration of their case after a judgment has been rendered and restrict their right to access to court (see Bogonos v. Russia, (dec) no. 68798/01, 5 February 2004, where the failure to serve a judgment was analysed in terms of access to court).

As to the service of the writ, the Court recalls that the concept of a fair trial includes the fundamental right that the proceedings should be adversarial (see Ruiz-Mateos v. Spain , judgment of 23 June 1993, Series A no. 262, p. 25, § 63). That implies that anyone who is a party to civil proceedings shall have the opportunity of having knowledge of and comment on the observations filed or evidence adduced by the other party with a view to influencing the court ’ s decision ( see, Lobo Machado v. Portugal and Vermeulen v. Belgium, judgment s of 20 February 1996, Reports of Judgments and Decisions 1996 ‑ I, p. 206, § 31, and p. 234, § 33, respectively).

In the instant case, the Court notes that the Regional Court ordered service by public notification only after other means of service ha d proved unsuccessful. In particular, its attempt s to serve the writ through the diplomatic channel remained unsuccessful inter alia because the Paraguayan authorities remained inactive when the Embassy requested them to execute the Regional Court ’ s request for service.

In the Court ’ s view the determining factor in this connection is, however, that following the applicant ’ s interrogation by the consular service, the German Embassy in Asunción had tried to hand over the writ . Either the applicant had expressly forbidden his counsel to accept it, or the lawyer did not wish to accept it. The least that could be said is that W was aware of the civil proceedings against the applicant. It is true that technically, W was the law yer in the criminal proceedings. However, the Regional Court considered, and the Court finds the reasoning convincing, that W, known as a diligent lawyer to the court, would have informed the applicant about the civil proceedings.

Under these circumstances the Court is satisfied that the applicant was aware of the initiation of the civil proceedings and that he had the possibility to participate in them. This conclusion is confirmed by the fact that the applicant did not subsequently challenge the validity of the public notification of the writ, but explicitly recognised its validity before the Regional Court . In doing so he accepted that he had had the possibility of a fair hearing.

As to the service of the default judgment by way of p ublic notification, the Court recalls that Article 6 does not provide for specific forms of service of documents (see, Bogonos v. Russia, cited above) .

The Court notes the reasons given by the German courts for this form of service, in particular that the alternative, postal service, would either have been unsuccessful or would have resulted in service being effected after the expiry of the time-limit for lodging objections.

However, the Court is not required to determine the compatibility of those reasons with Article 6, as the applicant ’ s lawyer, W, was informed – after having raised the issue himself - about the default judgment on 2 August 1999 . He then had two weeks from that date in which to lodge a request for reinstatement. Again, the Court does not accept the applicant ’ s contention that W had represented him in the criminal proceedings but not in the civil proceedings: W held himself out as being involved in the civil proceedings when he asked the plaintiff ’ s lawyer about them, and it is not open to the applicant now to claim that W was unconnected to the civil proceedings. The applicant can therefore be taken to have been aware of not merely the proceedings, but also of the default judgment itself.

In any event, and as set out above, the applicant was aware of the initiation of the civil proceedings against him and, hence, of the risk of being issued with a default judgment as he did not participate in the proceedings. The Court considers that the applicant could have reasonably been expected to abide by Section 174 § 2 of the Code of Civil Procedure (see “Relevant domestic law and practice”) by appointing a person for service and to make the necessary ar rangements to ensure the receipt of his legal documents (see Hennings v. Germany , judgment of 16 December 1992, Series A no. 251 ‑ A, p. 11-12, § 26) . This is all the more true in a case like the present, where the applicant deliberately absented himself from Germany and moved to a country where the service of documents was almost impossible .

Consequently, the Court considers that the applicant had not been denied effective access to court or a fair trial.

In conclusion, the Court finds that the Regional Court ’ s service by public notification of the writ and the default judgment did not involve a breach of Article 6 § 1 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant further complained under Article 6 of the Convention, that he was surprised by the reasoning of the Federal Court of Justice which interpreted his submissions in an unforeseeable manner.

The Court refers in this connection to the Commission ’ s case-law according to which there was no violation of the right to a fair hearing if the domestic court did not invite the parties to comment on all points of law which it eventually considered to be relevant (see Lehmann v. Germany , no. 13957/88, Commission decision of 8 November 1989).

In the instant case the Court observes that according to the Federal Court of Justice the applicant could not complain about the alleged invalidity of the judgment ’ s service because he had explicitly accepted the validity of the service of the writ. However, this argument concerned the same subject matter raised by the applicant, namely the validity of the judgment ’ s service by public notification and did not go beyond the factual and legal issues at stake.

Under these circumstances the Court cannot find that the Federal Court of Justice violated the applicant ’ s right to a fair hearing.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 within the meaning of §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President