Communicated on 26 May 2015

FIFTH SECTION

Application no. 24062/13 Marc BRAUER against Germany lodged on 23 March 2013

STATEMENT OF FACTS

1. The applicant, Mr Marc Brauer , is a German national who was born in 1978 and lives in Rheine .

A. The circumstances of the case

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

1. Background to the case

3. On 26 June 2012 the applicant was arrested on the spot for using a hammer to damage a number of vehicles parked in the Bocholt courthouse ’ s car park, and resisting the court ’ s clerk. As a preliminary measure he was confined to a psychiatric hospital. The court appointed defence counsel to him. The applicant had a previous history of psychiatric treatment going back as far as 1999. In June 2012 he had received, for the last time, a prolonged ‑ release suspension injection of Xeplion , a drug used by psychiatrists to treat schizophrenia.

4. On 18 December 2012, the day of the main hearing, the applicant was suffering from chronic attention deficiency syndrome, which went untreated at that time. On that day the Münster Regional Court delivered its judgment and ordered the applicant ’ s confinement to a psychiatric hospital. It held that the applicant was incapable of criminal responsibility and was mentally ill. According to the court ’ s psychiatric expert, he was psychotic and aggressive. He did not show any awareness of his illness and it was likely that he would commit further, even more serious crimes against people.

5. When the judgment was delivered, the applicant became very agitated. He declared that he wanted to appeal against the decision right away but was told that this was not possible on the spot. The presiding judge instructed him about the time and form for lodging an appeal on points of law. The applicant told the court-appointed lawyer that he wished for a change in representation. He was then returned to the forensic hospital.

6. On 21 December 2012 the applicant received a letter from the court ‑ appointed lawyer, dated 19 December 2012, who advised him as follows:

“ ...You already announced immediately after the hearing that you wanted to appeal against the court ’ s decision and also to mandate new defence counsel. W e respect your wish for new counsel and hereby terminate the mandate .

Regarding the remedy you wished for we give the following advice: You may appeal on points of law against the decision of the Münster Regional Court (Bocholt Chamber) within one week after the judgment was delivered , thus until

27 December 2012

at the latest.

Appeal on points of law may be lodged either to the record of the registry or in writing. Since you are not at liberty, the special provision of Article 299 of the CCP applies to you. This means that you can make statements relating to appellate remedies to the record of the registry of the District Court in whose district the institution is located.

Thus, the Rheine District Court would be competent.

According to Article 295 § 2 of the CCP, in order to meet the time-line it suffices if the record is taken within the time - limit .

In your own interest you should take care that the appeal is lodged in time.

For the sake of completeness we refer to Article 345 of the CCP which prescribes that the specific grounds of the appeal shall be submitted to the court whose judgment is being contested no later than one month after expiry of the time - limit for seeking the appellate remedy. If the judgment has not been served by the expiry of that time ‑ limit, the time ‑ limit shall start to run upon the service thereof.

In your case this may only be done in the form of a notice signed by defence counsel or by an attorney, or to be recorded by the court registry. ”

7. Still, on 21 December 2012 the applicant typed and signed an appeal letter to the Rheine District Court and asked the clinic ’ s staff to post it. This was done on the following day.

8. On 28 December 2012 the applicant ’ s appeal letter reached the Rheine District Court, and was apparently forwarded to the Münster Regional Court where it was received on 30 December 2012.

9. On 8 January 2013 the Regional Court informed the applicant that his appeal was belated. It underlined that the applicant had been instructed after the judgment ’ s delivery that an appeal could only be recorded by the registry of the District Court but could not be lodged in writing.

2. The reinstatement proceedings

10. On 14 January 2013 the court-appointed lawyer, who had resumed his activity for the applicant, requested reinstatement and lodged an appeal on points of law. He explained that the applicant had misunderstood his counsel ’ s instruction on how to lodge an appeal. The applicant had believed that he was able to choose whether he wanted to lodge the appeal in writing or have it recorded by the registry either at the Rheine District Court or the Münster Regional Court. He could also have expected the appeal, posted on 22 December, to reach the Rheine District Court by 27 December 2012.

11. On 11 March 2013 the Federal Prosecutor General observed, inter alia , that:

“He [ defence counsel] referred to Article 299 of the Code of Criminal Procedure by using wording which was not per se wrong but potentially misleading because it could be understood that the appeal on points of law might be lodged either (by the applicant himself) to the record of the Rheine District Court ’ s registry or in writing to the same court. ”

However, according to the Federal Prosecutor General, the oral instruction on the day of the hearing was sufficient.

12. On 9 April 2013 the court-appointed lawyer submitted that:

“ ... already at the time of trial the applicant was confined to a psychiatric clinic because of his mental illness. It may be that the oral instructions on the right to appeal given after the delivery of the judgment were correct and complete. However, when judgment was passed which ordered his confinement to a psychiatric hospital, the applicant was not in his right mind. Communication between the applicant and his defence counsel was impossible. The applicant was obviously in an exceptional mental state. In such a situation, taking into account the applicant ’ s psychiatric illness, it must be assumed that he had not understood the oral instructions on the right to appeal which were given immediately after the delivery of the judgment. ”

13. On 24 April 2013 the Federal Court of Justice (FCJ) rejected the applicant ’ s request for reinstatement and consequently dismissed his appeal on points of law as inadmissible because it had been lodged out of time. It held that it was not necessary to examine whether, in regard to the Christmas holidays, the applicant should have expected his letter to be delivered only on 28 December 2012. Rather, it found decisive that the applicant had been expressly instructed on the day of the judgment ’ s delivery that an appeal could only be lodged at the Rheine District Court to the record of the registry, but not in writing. An accused who misunderstood the oral instruction and therefore lodged an appeal out of time was himself responsible for this. The FCJ distinguished the applicant ’ s case from case ‑ law making exceptions for a foreigner who was not defended by counsel. Moreover, the applicant ’ s defence counsel had given him instructions on the form and time-limit for an appeal. According to the Federal Court of Justice , the content of this letter was not misleading but reflected correctly the applicable law. There was nothing to show that the applicant might not have understood the oral instructions by the presiding judge for mental health reasons. He misunderstood the subsequent written instructions of his defence counsel in the same way.

14. The applicant filed a constitutional complaint to the Federal Constitutional Court. He stated, i nter alia , that another lawyer had advised him that his court-appointed defence counsel had been under an obligation to file the appeal on points of law.

15. On 29 June 2013 the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint for adjudication, without providing reasons (no. 2 BvR 1243/13).

B. Relevant domestic law

16. The provisions of the German Code of Criminal Procedure ( Strafprozessordnung ) which are relevant to the present case read as follows:

Article 140

“(1) The participation of defence counsel shall be mandatory if

1. the main hearing at first instance is held at the Court of Appeal or at the Regional Court;

...

4. remand detention pursuant to Articles 112 or 112a or provisional placement pursuant to Article 126a or Article 275a subsection (6) is executed against an accused;

5. the accused has been in an institution for at least three months based on judicial order or with the approval of the judge and will not be released from such institution at least two weeks prior to commencement of the main hearing;

... ”

Article 341

“ (1) The appeal on points of law shall be filed with the court whose judgment is being contested, either to be recorded by the registry or in writing, within one week after pronouncement of judgment.

... ”

Article 299

“ (1) An accused who is not at liberty may make statements relating to appellate remedies to be recorded by the registry of the District Court in whose district the institution where he is detained upon official order is located.

(2) For observance of a time - limit it shall be sufficient for the record to be made within the time - limit. ”

17. Section 49 (1) of the Federal Lawyer ’ s Act ( Bundesrechtsanwalts-ordnung ) – as far as relevant – provides:

“ A legal practitioner must take up a party ’ s defence or act as counsel if he or she has been appointed as counsel under the provisions of the Code of Criminal Procedure ... ”

COMPLAINTS

18. The applicant complains under Article 6 § 1 of the Convention that his appeal on points of law concerning the Münster Regional Court ’ s judgment of 18 December 2012 was declared inadmissible and his request for reinstatement dismissed . He claims that he was unable to understand the oral instructions of the presiding judge due to his mental state on the day when the judgment was delivered. Furthermore he alleges that the subsequent written instruction by his court-appointed defence counsel, who undertook activities to defend him at that time, was unclear and led him to lodge his written appeal with the wrong court.

QUESTION TO THE PARTIES

Did the Federal Court of Justice ’ s refusal to grant the applicant ’ s request for reinstatement impair the applicant ’ s right of access to court under Article 6 § 1 of the Convention?