Communicated on 15 January 2016

FIFTH SECTION

Application no. 33095/15 Eljwer RAMADANOVIC against Germany lodged on 26 June 2015

STATEMENT OF FACTS

The applicant, Mr Eljwer Ramadanovic , is a Serbian national, who was born in 1970 and lives in Gütersloh . He is represented before the Court by Mr P. Oberwetter , a lawyer practising in Gütersloh .

A. The circumstances of the case

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

1. The proceedings before the criminal courts

On 29 April 2014 the Oberhausen District Court convicted the applicant of two counts of burglary of a dwelling and sentenced him to one year and six months ’ imprisonment.

The applicant, represented by counsel, lodged an appeal, which related exclusively to the sentencing, against that judgment.

On 24 October 2014 the Duisburg Regional Court held a hearing at which the applicant ’ s counsel was present whereas the applicant failed to attend in person. The applicant claimed that he did not attend because of his poor state of health, notably feelings of “panic” and a severe depression, and produced a medical certificate of 23 October 2014. This certificate was not submitted to this Court.

By judgment of the same day, the Regional Court dismissed the applicant ’ s appeal. It found that the applicant had failed to attend the trial hearing before the Regional Court, to which he had been summoned, without sufficient excuse and that he was not represented by counsel in a permissible manner. It also found that the medical certificate submitted by the applicant did not suffice to substantiate that his health – notably his psychological condition – was such as to render his participation in the trial hearing unreasonable. During the hearing, the presiding judge had made a telephone call to the physician who had examined the applicant the day before and who had stated that he had only talked to the applicant for twenty minutes and that his diagnosis of feelings of “panic” and a severe depression was based on “gut feelings”. Therefore, the appeal had to be dismissed pursuant to Article 329 § 1, first sentence, of the Code of Criminal Procedure (see Relevant domestic law below).

On 27 November 2014 the Duisburg Regional Court dismissed the applicant ’ s request for reinstatement as regards his absence at the appeal hearing as inadmissible. It held that no grounds had been brought forward that justified the applicant ’ s absence at the trial hearing before the appellate court. Notably, the medical certificates and reports concerning subsequent medical examinations did not indicate that the applicant was not fit to stand trial or to travel, or that his health was such that his participation would have been unreasonable.

On 15 January 2015 the Düsseldorf Court of Appeal dismissed the applicant ’ s appeal against the Regional Court ’ s refusal to grant reinstatement, for the reasons set out by the Regional Court.

On 4 February 2015 the Düsseldorf Court of Appeal dismissed the applicant ’ s appeal on points of law. It took note of the applicant ’ s complaint that the Regional Court had committed a procedural error by dismissing his appeal because of his absence despite the fact that his counsel was present at the trial hearing before the appellate court and ready to defend him. However, the applicant had failed to comply with admissibility requirements for this complaint: he had not alleged that he had submitted a written power of attorney indicating that his counsel was authorised to defend him in his absence and had therefore failed to submit all relevant facts for the examination of the complaint (Article 344 § 2, second sentence, of the Code of Criminal Procedure, see Relevant domestic law below). The Court of Appeal went on to state that, according to unanimous case-law of the domestic courts, the presence of a counsel at a trial hearing before an appellate court did – de lege lata – not prevent the application of Article 329 § 1, first sentence, of the Code of Criminal Procedure. The amendments to Article 329 § 1, first sentence, of the Code of Criminal Procedure were still at the drafting stage and were not yet in force.

The Court of Appeal further held that the applicant ’ s appeal on points of law was inadmissible insofar as it related to his alleged illness as a justification for his absence at the hearing before Regional Court. The applicant did not submit whether and, if so, when the medical certificates of 23 October 2014 were transmitted to the Regional Court, nor what the content of the note relating to the telephone call of the presiding judge of the applicant ’ s doctor on 24 October 2014 was. The applicant therefore did not allege that the Regional Court knew or ought to have known that his absence was justified by the time it pronounced its judgment. He thus failed to comply with the requirements of Article 344 § 2, second sentence, of the Code of Criminal Procedure.

Finally, the Court of Appeal held that it could not examine the reasons of the Regional Court ’ s judgment because the applicant had not complained that provisions of substantive law had not been complied with ( allgemeine Sachrüge ).

The judgment was served on the applicant ’ s counsel on 12 February 2015.

2. The proceedings before the Federal Constitutional Court

On 11 March 2015 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He argued that the domestic courts ’ refusal to deal with his appeal on the merits due to his failure to attend the trial hearing before the appellate court, despite the fact that his counsel was present and ready to defend him, contrary to the conclusions of the European Court of Human Rights ’ judgment in the case of Neziraj v. Germany , no. 30804/07 , 8 November 2012 , had violated his right to defend himself through a lawyer and his right to a fair trial as guaranteed by the Basic Law. He further argued that the Court of Appeal had stated that his appeal on points of law, even if it had been lodged in compliance with the formal admissibility requirements of Article 344 § 2, second sentence, of the Code of Criminal Procedure would not have been successful. Finally, he submitted that Article 329 § 1, first sentence, of the Code of Criminal Procedure, on which the domestic courts relied to dismiss his appeal, no longer complied with the Basic Law following the European Court of Human Rights ’ judgment in the case of Neziraj (cited above).

On 17 March 2015 the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint as it was inadmissible (file no. 2 BvR 457/15). It found that the applicant had not complied with the requirements of subsidiarity owing to the fact that his procedural complaint before the Court of Appeal had been inadmissible for failure to comply with Article 344 § 2, second sentence, of the Code of Criminal Procedure, and that he had not sufficiently substantiated his complaint.

B. Relevant domestic law

The relevant domestic law at the material time, notably with regard to the rule that no hearing may be held in respect of a defendant who fails to attend and the exceptions to that rule, was identical to the law applicable in the case of Neziraj (cited above, §§ 23-30).

As regards the defendant ’ s failure to attend his trial hearing before the appellate court ( Berufungsgericht ), Article 329 § 1 of the Code of Criminal Procedure provided:

“(1) If, at the beginning of a main hearing neither the defendant nor, in cases in which this is permitted, a representative of the defendant appears, and if no adequate reason has been given for the failure to appear, the court dismisses an appeal lodged by the defendant without hearing the merits of the case. ...”

Article 329 § 1 was amended on 17 July 2015 ( BGBl . I S. 1332, entry into force 25 July 2015) to allow for the dismissal of the defendant ’ s appeal only if neither the defendant nor his or her counsel, who has a written power of attorney , attend the hearing before the appellate court and if no adequate reason has been given for the failure to attend.

Article 344 of the Code of Criminal Procedure, which governs the grounds for an appeal on points of law, provides:

“(1) The complainant shall make a statement concerning the extent to which he contests the judgment and is applying for it to be quashed (notices of appeal on points of law) and shall specify the grounds.

(2) The grounds must show whether the judgment is being contested because of a violation of a legal norm concerning the procedure or because of a violation of another legal norm. In the former case the facts containing the defect must be indicated.”

COMPLAINT

The applicant complains under Article 6 §§ 1, 3 (c) of the Convention that his right to defend himself through a lawyer was violated by the domestic courts ’ refusal to deal with his appeal on the merits due to his failure to attend the trial hearing before the appellate court, despite the fact that his counsel was present and ready to defend him.

QUESTIONS TO THE PARTIES

1. Did the applicant exhaust all effective domestic remedies in respect of his complaint under Article 6 §§ 1, 3 (c) of the Convention, as required by Article 35 § 1 of the Convention? In particular, was a remedy available to the applicant that was capable of providing redress in respect of his complaint and did this remedy offer reasonable prospects of success?

2. Having regard to the Court ’ s case-law (see, in particular, Neziraj v. Germany , no. 30804/07 , 8 November 2012) was the applicant able to defend himself through legal assistance of his own choosing, as required by Article 6 §§ 1, 3 (c) of the Convention?