Information Note on the Court’s case-law 54

June 2003

Reuther v. Germany (dec.) - 74789/01

Decision 5.6.2003 [Section I]

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Failure to pay sum required by the Constitutional Court of Bavaria in order for appeal to be examined: inadmissible

Article 6

Civil proceedings

Article 6-1

Access to court

Obligation to lodge advance costs in pro ceedings before the Constitutional Court: inadmissible

In December 1999, a district court made a criminal order against the applicant. The prosecution withdrew the order and the district court decided, in June 2000, that the fees necessarily incurred by the applicant were to be paid by the State. The applicant ’s representative claimed reimbursement of some 950 euros. The district court rejected the representative’s claim on the ground that he was not a lawyer approved by a German court and had not been approved by the court as the applicant’s defending counsel. His fees were therefore not necessary within the meaning of the applicable law. Furthermore, the applicant had merely claimed a flat rate sum, which could not be reimbursed. The regional court upheld the decision. The applicant appealed to the Constitutio nal Court of Bavaria. The judge of the Constitutional Court informed the applicant of the obstacles to the admissibility and the merits of his action. In such cases, the Constitutional Court could require the person concerned to pay a certain sum before pr oceeding to examine the action. The judge allowed the applicant one month to respond, failing which the action would be considered settled. The applicant responded. By a decision of January 2001, the Constitutional Court, sitting as a bench of three judges , ordered the applicant to pay 1,500 DEM as an advance on fees ( Kostenvorschuss ). The decision was accompanied by a letter from the judge explaining that the action was inadmissible or manifestly ill founded. The applicant did not pay the sum demanded.

In admissible under Article 6 § 1 (fair trial): The applicant did indeed bring before the Constitutional Court the complaints which he subsequently raised before the Court from the aspect of the right to a fair trial. However, having refused to pay the sum wh ich the Constitutional Court requested as an advance on the fees before adjudicating on the action, the applicant deprived the Constitutional Court of the opportunity to hear and determine those complaints. He therefore did not satisfy the condition laid d own in Article 35 § 1 of the Convention. The letters from the judge of the Constitutional Court informing the applicant of the obstacles to the admissibility or the merits of his application cannot be regarded as a decision of the Constitutional Court, thu s rendering it unnecessary for the applicant to request a formal decision of that court: failure to exhaust domestic remedies.

Inadmissible under Article 6 § 1 (access to a tribunal): The obligation to pay the Constitutional Court the sum of 1,500 DEM by w ay of an advance on fees before the court would adjudicate on the action is not a restriction on the right of access to a tribunal that is in itself incompatible with Article 6 § 1 of the Convention: manifestly ill founded.

© Council of Europe/European Co urt of Human Rights This summary by the Registry does not bind the Court.

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