FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 7557/03 by Jan VAN HARN against Germany

The European Court of Human Rights ( Fifth Section), sitting on 11 September 2007 as a Chamber composed of:

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

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Jan van Harn , is a Netherlands national who was born in Heteren in 1943 and lives in Ooij , the Netherlands . He is represented before the Court by Mr S. Nicolai, a lawyer practising in Wesel , Germany .

The respondent Government are represented by their Agent, Mrs A. Wittling -Vogel, Ministerialdirigentin , of the Federal Ministry of Justice.

A. The circumstances of the case

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

The applicant works as a lorry driver.

On 8 August 2001 he failed, in an inspection by an agent of the Federal Office for Goods Traffic ( Bundesamt für Güterverkehr – hereinafter called Federal Office ), to present documentation as to whether he had driven his lorry between 2 August and 7 August 2001. The protocol of that inspection was drawn up in German, contained the applicant ’ s comments and was signed by him. The protocol further noted that he had paid a security ( Sicherheitsleistung ) of 100 Dutch Guilders.

On 25 September 2001 the Federal Office issued a regulatory fine order ( Buß geldbescheid ) against the applicant, stating that he had committed a regulatory offence ( Ordnungswidrigkeit ). It held that the applicant had violated section 8 no. 1 (a) in conjunction with section 4 (1) sentence 1 of the crew regulations ( Fahrpersonalverordnung ).

The Federal Office imposed a fine of 500 Deutschmarks (250 euros).

The applicant was served the regulatory fine order on 29 September 2001. The fine order was written in German and included an instruction about his available legal remedies ( Rechtsbehelfsbelehrung ) in German. According to that note the applicant had the right to lodge an objection with the Federal Office within two weeks after the serving of the decision.

On 3 October 2001 the applicant took notice of the regulatory fine order and sent it to his legal insurance company ( Rechtsschutzversicherung ) afterwards.

The latter received the fine order on 12 October 2001 and forwarded the regulatory fine order to the applicant ’ s legal counsel on 15 October 2001.

On 18 October 2001 the applicant ’ s legal counsel received the regulatory fine order and accompanying documents and lodged an objection with the Federal Office on the same day.

On 29 November 2001 the Federal Office informed the legal counsel that the objection had been lodged outside the statutory time-limit.

On 6 December 2001 the legal counsel requested the reinstatement of the proceedings ( Wiedereinsetzung in den vorherigen Stand ). He argued that according to the general terms and conditions of the legal insurance company the applicant had been required to send the regulatory fine order first to the insurance company instead of sending it directly to his legal counsel. Hence he could not be held responsible for the time it took the Netherlands Postal Service to deliver his mail. The applicant submitted an according affirmation in lieu of an oath, but he presented neither a copy of the general terms and conditions of his legal insurance company nor any proof for the actual period of time it had taken his letter to reach his legal insurance company.

On 4 January 2002 the Federal Office rejected the applicant ’ s objection as inadmissible for having been lodged out of time. Furthermore, the Federal Office rejected the applicant ’ s request for reinstatement of proceedings. It held that the period of time for the delivery of his mail was contrary to all life experience and that the general terms and conditions of his legal insurance company did not justify the delay.

On 17 January 2002 the applicant requested the review by court ( Antrag auf gerichtliche Entscheidung ). Invoking Article 6 § 3 (a) of the Convention, the applicant argued that the regulatory fine order should have been served in a language he understood. Therefore, the decision had not been effectively served ( wirksam zugestellt ). In this respect the applicant referred to instruction no. 181 of the “Instructions on Criminal Procedure and Administrative Fine Procedures” ( Ric htlinien für das Straf - und Buß geldverfahren ) which stipulates that if the recipient does not have a sufficient knowledge of the German language, all documents have to be served with a translation into a language he understands (see “Relevant domestic law and practice” below). Furthermore, the applicant drew the court ’ s attention to the decision of the Federal Constitutional Court decision of 10 June 1975 (see “Relevant domestic law and practice” below. )

On 29 January 2002 the Cologne District Court confirmed the Federal Office ’ s decision for the following reasons. It held that the Federal Office had not been obliged to provide a translation of its regulatory fine order and the instructions about the available legal remedies, because Article 6 § 3 (a) of the Convention was only applicable to criminal proceedings. It denied its applicability to proceedings relating to regulatory offences ( Ordnungs - widrigkeitenverfahren ). Furthermore, the court recalled that an affirmation in lieu of an oath was not sufficient in such proceedings, because it could only be qualified as a simple declaration.

The applicant then lodged a constitutional complaint with the Federal Constitutional Court arguing that his right to be heard by a court (Article 103 of the German Basic Law) had been infringed, because he had not been granted reinstatement of the proceedings. The applicant repeated that Article 6 § 3 (a) of the Convention had been applicable to his case.

On 7 October 2002 the Federal Constitutional Court refused to admit the applicant ’ s constitutional complaint witho ut providing any reasoning.

B. Rele vant domestic law and practice

1. Instructions on Criminal and Administrative Fine Proceedings

“No. 181

I...

II Summons, arrest warrants, penal orders and other court decisions are to be served to a foreigner, if he does not have sufficient knowledge of the German language, with a translation into a language he understands. ...

No. 296

Nos. 182 through 189 apply analogously to administrative fine proceedings “

2. The relevant provisions of the Criminal Procedure Code

Section 44

“If a person was prevented from observing a time-limit through no fault of his own, he shall be granted reinstatement of the proceedings upon his motion. ...

Section 45

(1) The motion for reinstatement of the proceedings shall be filed with the court at which the time-limit should have been observed, within one week after the reason for non-compliance no longer applies. To observe that time-limit it is sufficient to file the motion in a timely fashion with the court that will decide on that motion.

(2) The facts justifying the motion shall be demonstrated ( glaubhaft machen ) at the time the motion is filed or during the proceedings upon that motion. The omitted act shall subsequently be undertaken within the time limit for filing the motion. Where this is done, reinstatement may also be granted without an application being filed.”

3. The decision of the Federal Constitutional Court of 10 June 1975

In its decision (see no. 2 BvR 1074/74, Decisions of the Federal Constitutional Court ( BVerfGE ), vol. 40, pp. 95 et seq .) the Federal Constitutional dealt with the following case. A Turkish national, who could neither read nor write German, was served a penal order. It included instructions about his available legal remedies written in German. Having problems finding a translator, he missed the statutory time-limit for lodging an objection. His request for reinstatement of the proceedings was rejected. The Federal Constitutional Court held that the applicant ’ s right to be heard under Article 103 of the German Basic Law had been violated. It found that the applicant, lacking sufficient knowledge of the German language, had been unaware of the statutory time-limit for lodging an objection. Therefore, his lack of understanding of the instructions about his available legal remedies was the reason for missing the time-limit. It followed that the applicant had to be treated as if he had never received instructions about his available legal remedies. The Federal Constitutional Court concluded that as a consequence for future cases, reinstatement has to be granted, if the recipient of a penal order ( Strafbefehl ) or a regulatory fine order missed the time-limit for lodging an objection, because he did not understand the instructions about his available legal remedies.

COMPLAINT

The applicant complained under Article 6 § 3 (a) of the Convention that the instructions about his available legal remedies attached to the penal order issued against him were not translated into a language he understood.

THE LAW

The applicant invoked a violation of Article 6 § 3(a) of the Convention which reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;...”

A. The Government ’ s submissions

1. Incompatibility ratione materiae

Relying on the cases of Öztürk v. Germany (judgment of 21 February 1984, Series A no. 73) and Lutz v. German y (judgment o f 25 August 1987, Series A no. 123, p. 24, § 57) the Government argued that Article 6 of the Convention did not apply to the administrative limb of administrative fine procedures, but solely to the subsequent court proceedings. Furthermore, the Government held the opinion that the regulatory offence in the instant case did not qualify as a criminal offence within the meaning of Article 6 § 1 of the Convention, since it did not meet the criteria as established by the Court in the case of Engel v. The Netherlands (judgment of 8 June 1976, Series A no. 22, pp. 33-35, §§ 80-83). In this respect the Government elaborated that the infringed rule was not addressed to the general public as road users, but was addressed to a specific professional group, namely lorry drivers. A violation of those rules therefore constituted an infringement of that group ’ s specific obligations, but could not be cons trued as a criminal offence.

2. The exhaustion of domestic remedies

The Government contended that the applicant had not requested reinstatement of the proceedings in compliance with the rules of procedure, since the Federal Office had found that he had been unable to demonstrate ( glaubhaft machen ) that it had actually taken the Netherlands Postal Service such a long time to deliver his letter. Furthermore, he had not demonstrated that he had been obliged to send the regulatory fine order first to his legal insurance company instead of his legal counsel. Lastly, the Government stressed that the applicant had neither submitted nor demonstrated in his motion for reinstatement that he had missed the time-limit for an objection due to the lack of a translation of the instructions on his legal remedies.

3. The merits

As regards the merits of the case the Government contended that the applicant had actually been informed about the charges brought against him in a language which he understood. The Government found that the applicant, according to the protocol written on 8 August 2001 by the agents of the Federal Office, had been able to communicate with the agents in German. They furthermore pointed out that the applicant frequently spent time in Germany due to his job and that the German and the Dutch language were quite similar. Lastly, the Government stressed that the applicant had not mentioned in his motion for reinstatement that he did not understand German.

Moreover, the Government pointed out that the applicant had never submitted that he had missed the time-limit due to his lack of understanding of the instructions on his legal remedies. He had rather argued that he had missed the time-limit because he had first sent the regulatory fine order to his legal insurance company, the delivery of which had taken such a long time.

The Government concluded that the applicant had actually failed to take the necessary measures to safeguard his right of access to a court where he could have challenged the regulatory fine order. The Government elaborated that domestic law did not provide for a translation of the regulatory fine order, since no. 181 of the Instructions on Criminal and Administrative Fine Proceedings did not apply to administrative fine proceedings. However, the Government went on to say that domestic law offered sufficient safeguards, in particular through the motion for reinstatement of the proceedings, for cases in which an individual missed a time-limit through no fault of his own. In this respect the Government referred to the case-law of the Federal Constitutional Court which provides that reinstatement of the proceedings has to be granted if a foreigner missed the statutory time-limit due to his lack of understanding of an instruction on his legal remedies in a lang uage which he understands.

B. The applicant ’ s submissions

The applicant contested the Government ’ s conclusions. From his point of view the Federal Constitutional Court had rendered a decision on the merits, which would mean that he had exhausted all remedies available to him under domestic law. Furthermore, the applicant maintained that he had no sufficient knowledge of the German language. Lastly, he disagreed with the Government ’ s point of view regarding the applicability of Article 6 to the present case.

C. The Court ’ s assessment

The Court does not consider it necessary to rule on the Government ’ s objections since, in any event, it considers that the complaint as a whole is inadmissible for the following reasons.

The Court finds that that the applicant complained in substance that he did not have access to a court for a determination of the charges against him, because he missed the time-limit for an objection due to the lack of an instruction on his legal remedies in a language which he understood.

In this respect the Court recalls that an applicant may be expected to avail himself of the safeguards provided by national law in order to ensure access to a court for an examination on the merits of his complaints (see S.B. v. Austria , no. 17740/91, Co mmission decision of 12 January 1993, unreported; Maass v. Germany ( dec .), no. 71598/01, 15 September 2005).

The Court notes that under domestic law the applicant had the opportunity to file an objection against the initial regulatory fine order issued by the Federal Office, and should that prove to be unsuccessful, to lodge a request for judicial review; thus ensuring the judicial examination of the merits of a regulatory fine order. Should the individual miss a time-limit for lodging such a remedy through no fault of his own, he is granted reinstatement of the proceedings. This is especially the case if an individual missed the time-limit because he did not have sufficient command of the German language to understand the instruction on his legal remedies.

In the instant case the applicant, assisted by counsel, failed to lodge a motion for reinstatement of proceedings in conformity with the procedural requirements since he only submitted an affirmation in lieu of an oath; contrary to the demands of domestic law he did not demonstrate the facts on which he based his request for reinstatement. The applicant presented neither a copy of his letter sent to the legal insurance company bearing the latter ’ s receipt stamp nor the insurance company ’ s general terms and conditions. Furthermore, the applicant did not even submit in his first letter with the motion for reinstatement that he did not understand German and therefore missed the time-limit. His motion was thus dismissed and as a result his objection was deemed inadmissible. The applicant therefore barred himself from an examination of the merits of the regulatory fine order and the question whether the instruction on his legal remedies should have been served in a different language. It is therefore essentially attributable to the applicant himself that there had been no judicial determination of the charges against him. Thus it cannot be said that the applicant was arbitrarily denied access to a court.

As a consequence, the Court considers that the applicant ’ s complaint is manifestly ill-founded as a whole and should therefore be dismissed pursuant to Article 35 §§ 3 and 4 of the Convention.

In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention.

For these re asons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Snejana Botoucharova Registrar President