Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12129/86

by Hans-Dieter HENNINGS

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 4 September 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

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 16 April 1986

by Hans-Dieter Hennings against the Federal Republic of Germany and

registered on 18 April 1986 under file No. 12129/86;

Having regard to

- the observations submitted by the respondent Government on

4 January 1989 and the observations in reply submitted by the applicant

on 19 May 1989;

- the submissions of the parties at the hearing on 4 September 1990;

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 national born in 1945, is a civil

servant resident in Oberaudorf in the Federal Republic of Germany.

Before the Commission he is represented by Freiherr von Ritter zu

Groenesteyn, a lawyer practising at Marzell in the Federal Republic of

Germany.

I. Particular circumstances of the case

On 15 April 1984 the applicant and his son boarded, at

Kufstein in Austria, a train in the direction of Munich. In the

course of a dispute with the train conductor, the latter took away

documents from the applicant who then apparently grasped the

conductor's shoulders, withdrew the documents and threw them on the

floor. In the course of this dispute the applicant's son hit the

conductor on the head with a wooden stick.

On 25 April 1984 the Railway Police (Bahnpolizei) of the German

Federal Railway (Deutsche Bundesbahn) questioned the applicant as to

the occurrences. The latter replied that he would not make any

statement, and that he would obtain a lawyer.

Subsequently, the applicant's wife was invited to give

evidence. On 30 May 1984 the applicant's lawyer replied that the

applicant's wife would exercise her right under the German Code of

Criminal Procedure (Strafprozessordnung) to refuse to give evidence.

On 12 July 1984 the Kiefersfelden customs police reported the

incident to the Public Prosecutor's Office at the Traunstein Regional

Court (Landgericht), stating that all necessary investigation as well

as the questioning of the witnesses and of the accused had already

taken place.

On 7 August 1984 the Public Prosecutor's Office

(Staatsanwaltschaft) at the Traunstein Regional Court (Landgericht)

wrote a letter (Schreiben) to the applicant, stating that he was

charged with the offence of compulsion. The applicant was further

told that if he paid a fine of 300 DM before 1 October 1984, no public

action (öffentliche Klage) would be brought against him. However, as

a further condition he would have to agree to this termination of the

proceedings by sending in an enclosed form by 20 September 1984.

The letter also stated that if the applicant did not reply

(ohne weitere Benachrichtigung) he would be indicted (wird Anklage

erhoben) without further notification.

The applicant did not send in the form, nor did he pay

the 300 DM.

On 7 November 1984 the Rosenheim District Court (Amtsgericht),

in summary proceedings, issued a penal order (Strafbefehl) in which it

sentenced the applicant to 25 daily rates of 40.- DM for committing

the offences of compulsion and dangerous bodily injury to the

conductor.

The penal order concerning the applicant was served on

12 November 1984. As neither the applicant not his wife were at home,

the penal order was served by depositing (Niederlegung) it at the

Oberaudorf Post Office and leaving a notification thereof in his

letter box.

The penal order acquired legal force on 20 November 1984 as

the applicant did not lodge an objection until 19 November 1984.

On 23 November the applicant's wife stated in an affidavit

(eidesstattliche Versicherung) that she had been absent from 6 until 20

November 1984 when she returned home. She had then opened the letter

box, seen the notification, and collected the penal order at the post

office. During her absence the applicant had stayed at home and

worked as usual. However, he had no key for their letter box.

On 26 November 1984, the applicant, represented by counsel,

filed an objection against the penal order together with a request to

be reinstituted into the proceedings (Wiedereinsetzung in den vorigen

Stand), claiming that his wife had only opened the letter box on

20 November 1984. The applicant joined the affidavit of his wife of

23 November 1984.

The applicant's objection and his request for reinstitution

reached the Rosenheim District Court on 27 November 1984.

Following a request for information by the Public Prosecutor's

Office at the Traunstein Regional Court, the Oberaudorf Post Office

stated in a note dated 3 December 1984 that the penal order had

been collected by the applicant's wife on 19 November 1984.

On 6 December 1984 the Rosenheim District Court dismissed the

applicant's request for reinstitution into the proceedings on the

ground that, as the information of the Oberau Post Office confirmed,

the applicant had duly received the penal order on 19 November 1984,

on which day he could still have filed an objection within the

time-limit. Moreover, the applicant had not filed his request for

reinstitution into the proceedings within the time-limit stated in

Section 45 of the Code of Criminal Procedure (see below Relevant

domestic law).

On 14 December 1984 the applicant's wife made a second

affidavit in which she supplemented her first affidavit of 23 November

1984. She stated that she had personally fetched the penal order at

the Oberaudorf Post Office on 19 November 1984, though she had only

handed it to the applicant on 20 November 1984 as she had not wanted

to irritate (aufregen) her husband the evening before.

On 24 January 1985 the Traunstein Regional Court dismissed the

applicant's appeal (Beschwerde). The Regional Court noted in

particular the discrepancy between the affidavit of the applicant's

wife of 23 November 1984 and information supplied by the Oberaudorf

Post Office. The Court noted furthermore that the discrepancy between

her first and second affidavit had not been explained either. There

existed therefore a suspicion that she had given a false affidavit,

and her statements could not be trusted.

On 17 October 1985 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde) on the ground that it offered no

prospect of success. The Constitutional Court considered that, if on

19 November 1984, i. e. the last day of the time-limit, the applicant

knew about the penal order, he could be expected immediatly to file

the objection in time. He could, for instance, have filed an

objection by telex. In any event, he had not been prevented through

no fault of his own from filing the objection in time on the ground

that he had not taken sufficient measures for his mail to reach him.

Thus, even though he was not absent while his wife was away, he failed

to ensure that their letter box could be opened and that, after her

return, mail was duly brought to his attention.

II. Relevant domestic law

A penal order is issued, without trial, in cases concerning

minor offences. According to S. 409 of the Code of Criminal Procedure,

in the version in force at that time, the penal order does not acquire

legal force if an objection is filed within seven days after the penal

order has been served. This was also stated in the penal order

concerning the applicant. The objection which need not be

substantiated must be filed in writing or otherwise recorded (zu

Protokoll) at the office concerned, whereupon trial proceedings are

instituted in respect of the charges stated in the penal order.

Section 410 of the version of the Code of Criminal Procedure

in force since 27 January 1987 provides for a time-limit of two weeks

for filing an objection against a penal order.

As regards the procedure of serving documents (Zustellung)

Section 37 of the Code of Criminal Procedure refers to the Code of

Civil Procedure (Zivilprozessordnung). The latter provides in Section

182 that, if a document cannot be personally served, it may be

deposited inter alia at a post office; a written notification of the

deposition must then be given to the person concerned as is usually

done in the case of normal letters (in der bei gewöhnlichen Briefen

üblichen Weise).

According to Section 44 of the Code of Criminal Procedure,

reinstitution into the proceedings is granted where a person,

through no fault of his own, is prevented from meeting a time-limit

(ohne Verschulden verhindert, eine Frist einzuhalten). Section 45 of

the Code of Criminal Procedure states that the application for

reinstatement must be made within one week of the hindrance ceasing to

exist.

COMPLAINTS

The applicant complains under Article 6 of the Convention of

the short time-limit for filing an objection against a penal order and

that the latter was not served on him personally. Under Article 14 of

the Convention together with Article 6 he complains that, while he had

one week for the objection, the Public Prosecutor's Office had three

months time to indict him. The applicant does not complain about the

reinstitution proceedings as such.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 16 April 1986 and registered

on 18 April 1986.

On 11 October 1988 the Commission decided to communicate the

application to the respondent Government and to invite them to submit

written observations on the admissibility and merits of the

application.

The Government's observations were submitted on 4 January

1989. After two extensions of his time-limit, the applicant submitted

his observations in reply on 19 May 1989.

On 11 October 1989 the Commission decided to invite the

parties to a hearing on the admissibility and merits of the

complaint under Article 6 para. 1 of the Convention concerning the

circumstances in which the penal order was served on the applicant.

Following two postponements, the hearing took place on

4 September 1990. The respondent Government were represented by their

Agent, Mr. J. Meyer-Ladewig and Mr. G. Uhink, Amtsrat, both of the

Federal Ministry of Justice. The applicant, who attended the hearing

in person, was assisted by his lawyer, Mr. G. Freiherr von Ritter zu

Groenesteyn.

THE LAW

The applicant complains of the short time-limit for filing an

objection against a penal order which was not served on him

personally. He submits that he had only some hours in the evening of

19 November 1984 to file an objection in time. The applicant relies on

Article 6 para. 1 (Art. 6-1) of the Convention which states, insofar

as it is relevant:

"In the determination ... of any criminal charge against

him, everyone is entitled to a fair and public hearing ...

by an independent and impartial tribunal established by

law."

The applicant also complains under Article 14 together with

Article 6 (Art. 14+6) of the Convention that the Public Prosecutor's

Office had three months to indict him whereas he only had seven days

to file the objection. Article 14 (Art. 14) of the Convention

states:

"The enjoyment of the rights and freedoms set forth in

this Convention shall be secured without discrimination

on any ground such as sex, race, colour, language,

religion, political or other opinion, national or social

origin, association with a national minority, property,

birth or other status."

The Government submit that, in view of the special features

of the proceedings concerning penal orders for minor offences, the

time-limit of one week to file an objection does not violate Article 6

(Art. 6) of the Convention. In case of objection, which requires no

reasoning, the accused is committed for trial and is then given the

necessary time to prepare his defence. Periods of absence for

professional reasons or holidays can be taken into account upon

request for reinstatement into the proceedings.

The Government contend that in the present case the penal

order acquired legal force on the ground that the applicant failed to

show that he was prevented through no fault of his own from filing his

objection in time. In fact the applicant, whose objection and

request to be reinstituted into the proceedings were received by the

Rosenheim District Court only on 27 November 1984, did not even comply

with the time-limit stated in Section 45 of the Code of Criminal

Procedure for filing a request for reinstitution.

The Commission finds that the application raises questions of

fact and law which are of such complexity that their determination

requires an examination of the merits. The application is therefore

not manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other ground for declaring it

inadmissible has been established.

For these reasons, the Commission

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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HENNINGS v. GERMANY

HENNINGS v. GERMANY

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