FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 12788/04 by J ü rgen -Peter HOMANN against Germany

The European Court of Human Rights (Fifth Section), sitting on 9 May 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr R. Maruste , Mr J. Borrego Borrego , Mrs R. Jaeger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 5 April 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr J ürgen -Peter Homann , is a German national who was born in 1945 and is currently detained in Diez .

A. The circumstances of the case

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

1. Background to the case

On 30 April 1985 the Koblenz Regional Court convicted the applicant of two counts of rape and sentenced him to twelve years ’ imprisonment. Furthermore, the court ordered the applicant ’ s placement in preventive detention pursuant to section 66 of the Criminal Code (see ‘ Relevant domestic law ’ , below).

Since 25 August 1999 the applicant, having served his full prison sentence, has been remanded in preventive detention.

2. Proceedings before the Arnsberg Regional Court

In the course of proceedings for review of whether the further execution of the applicant ’ s placement in preventive detention should be suspended on probation, the Arnsberg Regional Court summoned the applicant to a hearing on 22 May 2002.

By fax of 21 May 2002 the applicant lodged a motion with the Arnsberg Regional Court to revoke the designation of his court-appointed defence counsel. He argued that following the counsel ’ s visit in prison on that day, there was no longer a relationship of trust between him and his counsel. He informed the court that he would not appear at the hearing scheduled for 22 May 2002 as no proper defence had been set up. He further objected to the report submitted by expert K. on the risk of his being recidivist as the expert had not been able to consult the complete case-files.

On 22 May 2002 the president of the Arnsberg Regional Court dismissed the applicant ’ s request to revoke the ap pointment of his counsel as ill ‑ founded. He argued that under section 143 of the Code of Criminal Procedure (CCP), it was possible to revoke the designation of an officially appointed defence counsel if the mutual trust between the defendant and the lawyer was seriously disturbed. However, the applicant failed to substantiate this since he had not given any reasons for his allegation that there was no longer a relationship of trust between him and his counsel.

On 22 May 2002 the Arnsberg Regional Court refused to suspend the applicant ’ s placement in detention on probation following a hearing on the same day. At the hearing the applicant ’ s court-appointed defence counsel and the expert were present. As announced in his fax to the court, the applicant himself did not attend the hearing. Having regard to the report submitted by expert K., the Regional Court found that it could not be assumed that the applicant would not commit further offences if released from prison. It stated that the expert had convincingly argued that the applicant, as shown by his offence, was still dangerous for the public. Even though he had committed his last offence eighteen years ago, there were no signs that the applicant, who kept claiming to have been wrongfully convicted, was no longer likely to be recidivist.

On 28 May 2002 the applicant received a copy of the decisions taken by the Arnsberg Regional Court and its president by post. The Regional Court informed him that the decisions had been formally served on his defence counsel. Other than the letter to his counsel served on the same day, the letter to the applicant did not contain instructions about his available legal remedies ( Rechtsmittelbelehrung ).

3. Proceedings before the Hamm Court of Appeal

By submissions dated 10 and 11 June 2002, which reached the Hamm Court of Appeal on 14 June 2002, the applicant lodged an appeal against the aforementioned decisions of the Arnsberg Regional Court and its president.

On 26 September 2002 the Hamm Court of Appeal dismissed the applicant ’ s appeal against the Regional Court ’ s decision not to suspend his placement in preventive detention on probation as inadmissible. The court found that the applicant had not lodged his immediate appeal ( sofortige Beschwerde ) with the Regional Court as prescribed by section 306 § 1 CCP (see ‘ Relevant domestic law ’ , below), but directly with the Court of Appeal. The Court of Appeal had not been obliged to forward the appeal to the Regional Court , as it had already been lodged out of time when received by the Court of Appeal. Purs uant to sections 311 § 2 and 35 § 2 CCP (see ‘ Relevant domestic law ’ , below), the applicant had to lodge his immediate appeal within one week after the Regional Court ’ s decision, including instructions about the available legal remedies, had been served on his lawyer on 28 May 2002. The applicant had, however, failed to lodge his appeal until 4 June 2002 at the latest with the Arnsberg Regional Court .

The Hamm Court of Appeal further dismissed the applicant ’ s appeal against the refusal of the president of the Regional Court to revoke the designation of his court-appointed defence counsel as ill-founded. Endorsing the reasons given by the Regional Court, it argued that the applicant failed to substantiate that there were circumstances warranting the conclusion that the relationship of trust between him and his court ‑ appointed lawyer was considerably and irrevocably disturbed to an extent which rendered the conduct of a proper defence impossible. In particular, it had been objectively justified for the defence counsel to refuse to lodge motions aimed at challenging the applicant ’ s conviction in 1985. The lawfulness of this conviction was not at issue in the proceedings concerning the necessity of the applicant ’ s continued placement in preventive detention.

On 13 October 2002 the applicant filed a remonstrance ( Gegenvorstellung ) against the decision of the Hamm Court of Appeal dated 26 September 2002 dismissing his immediate appeal against the Regional Court ’ s decision not to suspend his placement in preventive detention on probation. He complained that the Regional Court ’ s letter of 28 May 2002 to him had not contained instructions about t he available legal remedies. He had not been in contact with his officially appointed counsel after 21 May 2002. He further argued that the Regional Court had been obliged to give him an opportunity to supplement the reasons why there was no longer a relationship of trust with his lawyer.

On 29 October 2002 the Hamm Court of Appeal, interpreting the applicant ’ s remonstrance as a request for reinstatement of the proceedings ( Wiedereinsetzung in den vorigen Stand ), dismissed this request. It found that the applicant had not substantiated that he had been prevented from observing the one-week time-limit for lodging an immediate appeal without fault of his own (section 44 CCP, see ‘ Relevant domestic law ’ , below). Instructions about the available legal remedies were and had to be given solely to the applicant ’ s lawyer, on whom the Regional Court ’ s decision had been formally served (sections 35a and 145a § 3 CCP, see ‘ Relevant domestic law ’ , below). There was no obligation under the Code of Criminal Procedure to enclose such instructions also in the letter sent to the applicant (section 145a § 3 CCP, see ‘ Relevant domestic law ’ , below). In that letter, the Court of Appeal had informed the applicant of the contents of the Regional Court ’ s decision and of the fact that it had been served on his counsel. He should therefore have contacted his lawyer without undue delay in order to be informed about the further course of the proceedings or to mandate him to lodge an appeal.

On 14 November 2002 the Hamm Court of Appeal rejected the applicant ’ s further remonstrance against its decision of 29 October 2002.

On 8 April and 19 August 2003 the Hamm Court of Appeal dismissed the applicant ’ s further requests for reinstatement of the proceedings.

On 6 May 2003, 16 October 2003 and 11 November 2003 the Hamm Court of Appeal rejected the applicant ’ s further remonstrances .

4. Proceedings before the Federal Constitutional Court

On 10 December 2003 the applicant lodged a complaint with the Federal Constitutional Court against the aforementioned decisions taken by the Regional Court and the Court of Appeal. He argued, in particular, that the failure to grant him access to the Court of Appeal in order to complain about the refusal of the Arnsberg Regional Court to suspend his placement in preventive detention on probation had violated his right to a fair trial as guaranteed by the Basic Law. The Regional Court had notably failed to inform him about the available legal remedies against its decision of 22 May 2002. Moreover, his right to a fair hearing had been breached in that the Regional Court had not revoked the designation of his court-appointed counsel without giving him an opportunity further to substantiate why there was no longer a relationship of trust between him and his counsel.

On 11 February 2004 the Federal Constitutional Court , without giving reasons for its decision, refused to admit the applicant ’ s constitutional complaint.

B. Rele vant domestic law

1. Provisions on the notification and service of court decisions

Decisions which are not taken in the presence of the person concerned shall be notified by service thereof (section 35 § 2 of the Code of Criminal Procedure – CCP).

The court-appointed defence counsel is considered authorized to accept service of documents on behalf of the defen dant (section 145a § 1 CCP). If a decision is served on counsel for the defence, the defendant shall be informed thereof; at the same time he shall be provided informally with a copy of the decision (section 145a § 3 CCP).

Upon notification of a decision the appeal against which is subject to a time-limit, the person concerned shall be given instructions about the options for contesting the decision and the prescribed time-limits and forms (section 35a CCP).

2. Provisions on the lodging of appeals and the reinstatement of the proceedings

An appeal against a decision ( Beschwerde ) shall be lodged with the court which took the contested decision, either orally to be recorded by the court ’ s registry or in writing (section 306 § 1 CCP).

An immediate appeal ( sofortige Beschwerde ) shall be lodged within one week; the time-limit shall start running upon notification (section 35 CCP) of the decision (section 311 § 2 CCP).

Section 44 provides that if a person was prevented from observing a time-limit without fault of his own, he shall be granted reinstatement of the proceedings ( Wiedereinsetzung in den vorigen Stand ). Failure to observe the time-limit for lodging an appeal shall be considered as not due to his fault if the instructions pursuant to section 35a CCP have not been given.

3. Provisions on preventive detention

The sentencing court may, at the time of the offender ’ s conviction, order his preventive detention in addition to his prison sentence if the offender is sentenced for an intentional offence to at least two years ’ imprisonment, has previously been convicted and detained (for certain periods fixed by law) and proved dangerous for the public (section 66 of the Criminal Code).

The court dealing with the execution of sentences may review at any time whether the further execution of the placement of a convicted person in preventive detention should be suspended on probation. It is obliged to do so every two years (section 67e of the Criminal Code).

COMPLAINTS

The applicant complained under Articles 1 and 6 § 1 of the Convention that the proceedings for review of whether his placement in preventive detention should be suspended on probation had been unfair. Due to the Regional Court ’ s failure to give him instructions about the available legal remedies, he had lodged his appeal out of time and had therefore been denied access to the Court of Appeal.

Invoking Article 13 of the Convention, the applicant further claimed that all his motions to have his immediate appeal heard on the merits by the Court of Appeal had been to no avail.

THE LAW

Invoking Articles 1, 6 § 1 and 13 of the Convention, the applicant complained about the unfairness of the proceedings concerning his continued placement in preventive detention. In particular, h e considered that his right of access to the Court of Appeal had been breached, which resulted in his appeal not having been decided on the merits.

The Court observes that the criminal charge against the applicant was determined within the meaning of Article 6 § 1 when the judgment of the Koblenz Regional Court of 30 April 1985 convicting him of rape became final. The proceedings at issue for review of whether the applicant ’ s placement in preventive detention could be suspended on probation, in which no new charges were raised against the applicant, do not concern the “determination ...of any criminal charge” against him under Article 6 § 1 (compare Koendjbiharie v. the Netherlands , no. 11487/85, Commission ’ s report of 12 October 1989, Series A no. 185-B, p. 52, §§ 79-80; Sampson v. Cyprus , no. 19774/92, Commission decision of 9 May 1994). Consequently, Article 6 is not applicable to the proceedings at issue.

The Court considers that the applicant ’ s complaints fall to be examined under Article 5 § 4 of the Convention alone, which provides:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The applicant claimed that the Regional Court had failed to instruct him about his available legal remedies even though he had a right to lodge an appeal in person. He had therefore been unaware that he had been obliged to lodge his appeal within a one-week time-limit with the Regional Court itself.

The applicant further submitted that his officially appointed defence counsel, who had received such instructions, had been unwilling to defend him and had never contacted him after 21 May 2 002. The one-week time ‑ limit had started to run when the decision had formally been served on his counsel. It could not be reasonably expected that he obtained instructions about the available legal remedies himself from the Regional Court within only one week.

The Court, assuming the exhaustion of domestic remedies, recalls that under Article 5 § 4 of the Convention detained persons are entitled to take proceedings for the review by a court of the lawfulness of their detention both at the time of the initial deprivation of liberty and, where new issues of lawfulness are capable of arising, periodically thereafter (see, inter alia , Weeks v. the United Kingdom , judgment of 2 March 1987, Series A no. 114, p. 28, § 56; Benjamin and Wilson v. the United Kingdom , no. 28212/95, § 33, 26 September 2002). Although it is not always necessary that the procedure under Article 5 § 4 be attended by the same guarantees as those required under Article 6 § 1 of the Convention for criminal or civil litigation, the right to take proceedings according to Article 5 § 4 implies, in particular, that a detained person should have access to a court (compare de Jong , Baljet and van den Brink v. the Netherlands , judgment of 22 May 1984, Series A no. 77, pp. 26-27, § 58; Megyeri v. Germany , judgment of 12 May 1992, Series A no. 237-A, pp. 11-12, § 22; Varbanov v. Bulgaria , no. 31365/96, ECHR 2000-X, § 58 ). Even though neither Article 6 nor Article 5 § 4 of the Convention compel the Contracting States to set up courts of appeal, the guarantees notably of an effective access to court must be complied with w here such courts do exist (see, mutatis mutandis , Delcourt v. Belgium , judgment of 17 January 1970, Series A no. 11, pp. 14-15, § 25; Levages Prestations Services v. France , judgment of 23 October 1996, Reports of Judgments and Decisions 1996-V, p. 1544, § 44).

The right of access to court is, however, not absolute; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic rules of a procedural nature. However, limitations to a person ’ s access to court must pursue a legitimate aim and be proportionate and must not restrict access to court in such a way or to such an extent that the very essence of the right is impaired (see, mutatis mutandis , Levages Prestations Services , cited above, p. 1543 , § 40; Tricard v. France , no. 40472/98, §§ 29, 33, 10 July 2001).

In the present case the Court observes at the outset that the applicant has served his full prison sentence and objected to his subsequent placement in preventive detention, which was ordered because the Regional Court found that the applicant risked being recidivist and was therefore still dangerous for the public. The factor of dangerousness is susceptible to change over the passage of time and new issues of lawfulness may thus arise in the course of the applicant ’ s detention. It follows that at that phase in the execution of his sentence, the supervision required by Article 5 § 4 was no longer incorporated in the judgment of the Koblenz Regional Court initially convicting and sentencing him and that the applicant was entitled to have the lawfulness of his continued preventive detention decided by a court at reasonable intervals (compare, inter alia , Th ynne , Wilson and Gunnell v. the United Kingdom , judgment of 25 October 1990, Series A no. 190-A, pp. 26-30, §§ 68 et seq. , 76; Stafford v. the United Kingdom [GC], no. 46295/99, § 87, ECHR 2002-IV). Article 5 § 4 is therefore applicable to the proceedings at issue.

The Court notes that the Hamm Court of Appeal declined to examine the applicant ’ s immediate appeal on the merits as the latter failed to lodge his appeal within the one-week time-limit prescribed by law. The domestic courts found that, in accordance with the applicable provisions of the Code of Criminal Procedure (sections 145a §§ 1 and 3 and 35a), the applicant had received a copy of the Regional Court ’ s decision concerning his preventive detention but, contrary to his submissions, did not have a right to be sent instructions about the available legal remedies. Solely the applicant ’ s officially assigned counsel, on whom the decision had been served, had to be and was in fact given such instructions.

It is true that prior to the decision of the Regional Court , the applicant had requested to revoke the appointment of his defence counsel, arguing that there was no longer a relationship of trust between him and his counsel. However, on 28 May 2002 the Arnsberg Regional Court had sent him a copy also of the decision of its president not to revoke the assignment of his defence counsel. This decision, as confirmed on appeal and by the Federal Constitutional Court , contained itself sufficient reasons and does not appear arbitrary. The Court also notes in this connection that the Hamm Court of Appeal had expressly addressed the applicant ’ s complaints about the conduct of the proceedings by the officially assigned defence counsel and had found this conduct to be objectively justified. There was nothing to indicate to the domestic courts that the officially appointed counsel manifestly failed to provide effective representation, requiring the courts to intervene (compare, amongst others, Czekalla v. Portugal , no. 38830/97, § 60, ECHR 2002-VIII).

The Court finds that the applicant was therefore aware from the outset that he was still legally represented by the court-appointed defence counsel in the proceedings concerning his preventive detention. Moreover, the Regional Court had informed him that the decision refusing to suspend his continued placement in preventive detention on probation had formally been served on his lawyer. In these circumstances, it does not appear to restrict in a disproportionate way the applicant ’ s access to court that the domestic courts considered that he should have contacted his lawyer without undue delay in order to be informed about the further course of his proceedings or to mandate him to lodge an appeal.

The Court concedes that the one-week time-limit for lodging an immediate appeal pursuant to section 311 § 2 CCP is quite short, having regard to the fact that the applicant was detained. However, he had the right, and in fact availed himself of the possibility, to apply for the reinstatement of the proceedings. Thereby, he had an additional opportunity to obtain a decision by the Court of Appeal on the merits, provided that he proved that he had been prevented from observing the one-week time-limit without fault of his own. The Court of Appeal, however, took the view that the applicant had failed to substantiate that he had not negligently failed to observe this time-limit. As found above, in reasoning that the applicant could have contacted his defence counsel without undue delay, that court did not construe the applicable procedural rules unreasonably strictly so as to undermine the very essence of the applicant ’ s right of access to court (compare, mutatis mutandis , Hennings v. Germany , judgment of 16 December 1992, Series A no. 251-A, p. 11, § 26).

Therefore, the Court concludes that the applicant ’ s right to take proceedings by which the lawfulness of his detention were decided by a court had not been restricted in a disproportionate manner by the domestic courts contrary to Article 5 § 4 of the Convention.

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

For these reasons, the Court by a majority

Declares the application inadmissible .

Claudia Westerdiek P eer Lorenzen Registrar President