Communicated on 19 March 2015

FIFTH SECTION

Application no. 17914/10 Ruth Marion JOHANSEN against Germany lodged on 29 March 2010

STATEMENT OF FACTS

The applicant, Ms Ruth Marion Johansen , is a German national, who was born in 1970 and lives in London . She is represented before the Court by Mr N. Dotterweich , a lawyer practising in Weimar who also represented her in the domestic proceedings.

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 Frankfurt am Main District Court concerning the applicant ’ s objection against the penal order

(a) The bill of the cashier of the Frankfurt am Main District Court for the payment of a penal order

On Friday 20 December 2008 the applicant found in her mailbox a bill of the court cashier of the Frankfurt District Court dated 15 December 2008 asking her to pay 5,063.50 euros (EUR) in execution of a penal order ( Strafbefehl ). The applicant knew that preliminary proceedings for evasion and embezzlement of employee earnings were pending against her. However, according to her, at the time she found the bill in her mailbox, she had not received a penal order. She therefore assumed that the penal order would be served on her in due course.

As the applicant still had not received a penal order by Monday 22 December 2008, she called the court cashier of Frankfurt District Court and was informed that a penal order for evasion and embezzlement of employee earnings with a conviction incurring a fine of 100 daily rates of EUR 50 had been issued against her on 16 October 2008 and had been served on her by deposition in her mailbox at Bücherweg 5, 63477 Maintal , Germany on 7 November 2008. As she had not filed an objection against the penal order within the statutory time-limit of two weeks (see relevant domestic law below), the penal order had become final. The applicant asked the court cashier to send her a copy of the penal order and the notice of delivery proving the service of the penal order in her mailbox.

(b) The applicant ’ s objection to the Frankfurt am Main District Court

On 27 December 2008, before receiving the copy of the penal order and the notice of delivery, the applicant filed an objection against the penal order with the Frankfurt District Court, and applied for the reinstatement of the proceedings and for suspension of the enforcement of the penal order. The applicant gave brief reasons for her objection and announced that her counsel, Mr Dotterweich , would provide detailed reasons after the Christmas holidays. She argued that her objection was not time-barred as the penal order had not been served on her on 7 November 2008.

The applicant claimed that she was sure about this fact because she had noted in her personal diary that her counsel and her husband had been at a court hearing at the Hanau District Court on 7 November 2008 and had therefore come to visit her at her house on that day. In the afternoon of 7 November she had bade farewell to her counsel. When accompanying him to the front gate, she had checked her mailbox for her daily mail. She had found neither a penal order nor a notice that a penal order had been deposited in another place.

The applicant offered proof of her allegations by calling her husband and her counsel as witnesses and by announcing that these witnesses would submit affirmations in lieu of an oath after the Christmas holidays.

The applicant further stated that, had there been a penal order in her mailbox, she would have given it directly to her counsel. As she had known that preliminary investigation proceedings were pending, she had discussed the matter with her counsel. However, as she had paid the missing employment earnings in the meantime, her counsel had been of the view that the proceedings would be discontinued. She had therefore made a written statement to the prosecution in which she had asked for the proceedings to be discontinued and had also asked to be informed should they not be discontinued so that she could commission counsel to defend her. She had not therefore expected a penal order to be served on her.

(c) The copy of the penal order and of the notice of delivery

On 7 January 2009 the copies of the penal order and the notice of delivery were received by the applicant. The notice of delivery stated that on 7 November 2008 at 2 .10 p . m . the courier had tried to hand the penal order to the applicant at her house. As this had not been possible, she had served the penal order on the applicant by putting the penal order into the applicant ’ s mailbox .

(d) The applicant ’ s counsel ’ s submission to the Frankfurt am Main District Court

On 6 February 2009 the applicant ’ s counsel gave notice to the Frankfurt District Court that he now represented the applicant. He appended the statement of the applicant and gave a more detailed description of the events of 7 November 2008.

The applicant ’ s counsel claimed that the applicant, the applicant ’ s mother who was living in the same house as the applicant, and the applicant ’ s husband who lived in London, had all been at the applicant ’ s house at the time the penal order had allegedly been served. All persons present were able to testify that the penal order had not been submitted by way of substituted service ( Ersatzzustellung ), meaning by a delivery service that first rang the doorbell and then put the penal order into the mailbox.

The applicant ’ s counsel himself had been at a court hearing at the Hanau District Court at 11.15 a.m., accompanied by the applicant. They had both returned to the applicant ’ s house at around 12.15 p.m. The applicant ’ s husband had arrived shortly before them and had been waiting for them, together with the applicant ’ s mother. They had all waited together for his and the applicant ’ s common daughter to come home from school, as the latter was supposed to spend the weekend with her father. The girl had arrived at around 1.30 p.m. and had packed her suitcase. No one had rung the doorbell while they had been waiting. Should anyone have rung the doorbell, they would have noticed, as the applicant had dogs, which had been outside and would have barked. Around 3.30 p.m. they had all left the house and had gone to the cars which were parked in front of the house. On that occasion the applicant had taken the mail out of her mailbox a s the daily mail was usually delivered around noon . She had immediately checked the contents. There had been no official letter from a court. Such a letter would have stood out and would therefore have been noticed by the people present, as official court letters came in bright yellow envelopes. The applicant ’ s husband, counsel himself and his daughter had left. The applicant and her mother had returned to the house.

The applicant ’ s counsel further argued in his submissions that the company, JUREX, which had been in charge of the delivery of official court mail for the Frankfurt District Court, was known for its unreliability. In December 2008, hence shortly after the alleged delivery, the company had had to register as insolvent.

The applicant ’ s counsel added to his submissions the affirmations in lieu of an oath of the applicant ’ s mother, the applicant ’ s husband and himself.

The applicant ’ s mother stated that she had paid special attention when her daughter took the mail out of the mailbox as, owing to the fact that they lived in the same house, part of her mail was sometimes put into her daughter ’ s mailbox.

The applicant ’ s husband declared that on 7 November he had travelled from Switzerland to join the applicant ’ s counsel and the applicant for the court hearing at Hanau District Court. Owing to the heavy traffic on the roads he had, however, arrived too late for the hearing and had therefore gone directly to the applicant ’ s house where he had arrived at around 12.10 p.m. When the applicant had taken out the mail he had paid special attention because he had formerly also lived in the same house and sometimes mail addressed to him was still sent to his former address.

The applicant ’ s lawyer also confirmed that he had neither heard the doorbell ring nor seen any official court letter in the mail. As evidence for the hearing at the Hanau District Court on 7 November, he added a copy of his diary.

(e) The witness statement of the courier

Following the applicant ’ s objection, the Frankfurt District Court had the courier who had delivered the applicant ’ s penal order interviewed by the police as a witness. The courier stated that it was in fact her husband who had a contract to work for JUREX, the company who had been in charge of the delivery of official court letters for the Frankfurt District Court. She had given her data to JUREX and had then helped her husband with the delivery of the court mail. Her husband had driven the car and she had served the letters. She had not received any training for this work.

When asked by the police to describe how she had delivered official court letters she stated that official court letters had always been in yellow envelopes. She had rung the doorbells of the addressees. If they did not respond she would deposit a letter of notification in the mailbox. She confirmed that the signature on the notice of delivery was hers, the date and the time had been filled in by her husband. She could not specially remember the delivery of 7 November nor the applicant ’ s house. When confronted with the applicant ’ s claim that no one had rung the bell at her door on 7 November, she responded: “Well, I can only say what I did and that I did my work!” She further declared that she had only worked as a courier for a short period of time and had been forced to give up this job in December 2008 as her husband had lost his driver ’ s licence.

At the end of her witness statement the courier was again reminded by the interviewing police officer that she was not obliged to make any statements that could incriminate her. Following this explanation the courier confirmed again: “I am sure that I served the mail according to the rules or left a letter of notification respectively”. („Ich habe die Post mit Sicherheit ordentlich zugestellt, bzw. die Benachrichtigung hinterlassen.“) .

(f ) The Frankfurt am Main District Court ’ s decision on the applicant ’ s objection against the penal order and her application for reinstatement of the proceedings

On 9 April 2009 the Frankfurt District Court rejected the applicant ’ s objection against the penal order as inadmissible and dismissed her application for reinstatement of the proceedings . The court was convinced that the penal order had been served on the applicant on 7 November 2008 as was certified by the notice of delivery. The applicant had therefore failed to file her objection within the two-week time-limit a nd the penal order had hence become final (see relevant domestic law below). The notice of delivery had probative value for the fact that the penal order had been put into the mailbox by the courier. In accordance with the settled case-law of the Frankfurt Court of Appeal, counter-evidence could only be put forward if facts were presented that convinced the court that there was no possibility that the facts certified by the notice of delivery were right. The applicant had not been able to furnish the court with counter-evidence of that kind. The story described by the applicant seemed fabricated. The court could not comprehend why the applicant had not mentioned in her first submission of 27 December 2008 all the persons who had allegedly been present when she checked her mail. The court was of the view that it was not in accordance with general experience in life for someone to check his mail in front of all his family members. It was usual first to bid one ’ s guests farewell and then to go through one ’ s mail.

Furthermore, the courier had testified that she had always served the official court mail in accordance with the rules. She had always rung the doorbell at the addressees ’ homes and had always left a letter of notification if no one responded. Moreover, when asked by the police, JUREX had confirmed that no irregularities were known to the company with regard to court mail delivery. In view of the severe criminal punishment a courier could expect for embezzlement of mail, the courier had had no incentive not to deliver the court mail in the appropriate way.

On the other hand, the declarations in lieu of an oath all came from persons who were close to the applicant and who had a considerable interest in the outcome of the criminal proceedings against her.

Having in mind all these arguments, the court was finally of the view that, in accordance with the courier ’ s testimony, it was certain that the penal order had been served on the applicant on 7 November 2008 by way of the deposition of the penal order in her mailbox and that the two-week time ‑ limit for filing objections had therefore passed before the applicant had lodged her objection with the court.

The court was further of the view that there was no reason to grant the applicant reinstatement of the proceedings , as it was not apparent why the applicant had been prevented, through no fault of her own, from submitting her objection against the penal order within the two-week time-limit after the delivery of 7 November 2008.

2. The proceedings before the Frankfurt Regional Court concerning the applicant ’ s appeal

On 22 April 2009 the applicant, represented by her lawyer, appealed against the decision of the Frankfurt District Court. Repeating the arguments she had already put forward, she added that the unreliability of JUREX had even been treated in the press. She cited an article of the internet media “Spiegel Online” which alleged ly wrote about JUREX: “ A number of customers of JUREX, among them courts and other authorities , have carried out examinations of the reliability of the courier . The Oldenburg Court of Appeal critici s es unpunctuality, unreliability and chaotic management. The Kiel Regional Court finds major deficiencies with regard to treatment and duration of the delivery of the mail and critici s ed deficient delivery. ”

A local newspaper stated: “JUREX made headlines when a whole package of important court mail was found in a garbage shed.”

The applicant further pointed out that the courier ’ s witness statement contradicted the notice of delivery as the courier had described the delivery of the penal order by way of putting a letter of notification into the addressee ’ s mailbox, which described a substituted delivery in accordance with Article 181 of the Code of Civil Procedure (see relevant domestic law below) while the notice of delivery certified delivery by way of putting the penal order itself into the applicant ’ s mailbox, which described substituted delivery in accordance with Article 180 of the Code of Civil Procedure (see r elevant domestic law below) . If an official court letter was served on a person in the way the courier described, a notice was put into the addressee ’ s mailbox that informed the addressee where the official court letter had been deposited for collection, but the official court mail itself was not put into the mailbox.

On 10 June 2009 the Frankfurt Regional Court dismissed the applicant ’ s appeal against the decision of the Frankfurt District Court. The court confirmed the District Court ’ s opinion that the penal order had effectively been served on the applicant on 7 November by putting it into the applicant ’ s mailbox. The applicant had not furnished the court with sufficient counter-evidence. The courier and her husband had had no reason to commit post embezzlement and forgery of documents. The affirmations in lieu of oaths could not prove that the penal order had not been in the mailbox on 7 November 2008. The affirming persons had not testified that they had constantly paid special attention to a possible ringing of the doorbell. Furthermore, it could not be ruled out that the applicant had been inattentive when opening the mail. It was likely that the penal order had been hidden among other mail and that the applicant ’ s attention had been reduced because of the presence of guests. The penal order had probably inadvertently been thrown away or simply ignored. The objection was hence time-barred.

3. Further proceedings before the Frankfurt District Court and the Frankfurt Regional Court concerning the applicant ’ s motion to be heard

Following the dismissal of her appeal, the applicant lodged a motion to be heard with the Frankfurt District Court which was dismissed by the court on 10 July 2009. The applicant ’ s subsequent appeal and further appeal with the Frankfurt Regional Court were dismissed on 14 July and 16 July 2009 respectively.

4. The proceedings before the Federal Constitutional Court

On 24 August 2009 the applicant lodged a constitutional complaint with the Federal Constitutional Court in which she claimed that her constitutional right to be heard and her right to a fair trial had been infringed.

On 22 September 2009 the Federal Constitutional Court dismissed the complaint without giving any reasons (file no. 2 BvR 1891/09).

B. Relevant domestic law

Under the German Code of Criminal Procedure, a penal order ( Strafbefehl ) may be served by the court on a defendant upon application by the prosecution office and without prior hearing of the defendant under the circumstances and in accordance with the procedure set out in the following provisions:

Article 407 of the Code of Criminal Procedure

“(1) In proceedings before the criminal court judge and in proceedings within the jurisdiction of a court with lay judges, the legal consequences of the offence may, in the case of misdemeano u rs , be imposed, upon written application by the public prosecution office, in a written penal order without a main hearing. The public prosecution office shall file such application if it does not consider a main hearing to be necessary , given the outcome of the investigations. The application shall refer to specific legal consequences. The application shall constitute preferment of the public charges.

(2) A penal order may impose only the following legal consequences of the offence, either on their own or in combination:

1. fine , ...

(3) The court shall not be required to give the indi cted accused a prior hearing ... . ”

Article 408 of the Code of Criminal Procedure

“... (3) The judge shall comply with the application of the public prosecution office if he has no reservations about issuing the penal order. ... ”

The procedure for filing an objection against a penal order is laid down in Articles 410 and 411 of the Code of Criminal Procedure. In their relevant parts they read as follows:

Article 410 of the Code of Criminal Procedure

“(1) Within two weeks following service of the penal order the defendant may lodge an objection against the penal order at the court which issued it, either in writing or orally to be recorded by the registr y ...

...

(3) Where objections to the penal order are not lodged in time the order shall be equivalent to a judgment that has entered into force. ”

Article 411 of the Code of Criminal Procedure

“ (1) Where the objection is lodged out of time or is otherwise inadmissible it shall be dismissed in an order without a main hearing; an immediate complaint shall be admissible against the order. In all other cases a date shall be set down for the main hearing. ...

...

(4) Where an objection has been lodged, the court when giving judgment shall not be bound by the decision contained in the penal order. ”

In case the penal order has been served on the defendant but the defendant has been prevented from taking notice of the penal order through no fault of his own, the defendant may be granted reinstatement into the proceedings and may still file an objection against the penal order by virtue of the following provisions:

Article 44 of the Code of Criminal Procedure

“ If a person was prevented from observing a time - limit through no fault of his own, he shall be granted restoration of the status quo ante upon application. ... ”

Article 45 of the Code of Criminal Procedure

“(1) The application for restoration of the status quo ante shall be filed with the court where the time - limit should have been observed within one week after the reason for non-compliance no longer applies. ... ”

A penal order has to be served on the defendant in accordance with the rules of official delivery of the Code of Criminal Procedure read in conjunction with the relevant rules of t he Code of Civil Procedure (see Article 37 of the Code of Criminal Procedure) which read in their relevant parts as follows:

Article 177 of the Code of Civil Procedure - Place of service

“ The document may be physically submitted to the person on whom it is to be served at any location at which the person is found. ”

Article 178 of the Code of Civil Procedure - Substituted service at the residence, at business premises, and at institutions

“(1) Should the person on whom documents are to be served not be located at his residence, ... , the document may be served:

1. At the residence: on an adult family member, a person employed by the family or an adult resident permanently sharing the accommodation, ... ”

Article 180 of the Code of Civil Procedure - Substituted service by placement in the mailbox

“ Should it not be possible to serve the document pursuant to section 178 (1) number 1 or 2, the document may be placed in a mailbox appurtenant to the residence or the business premises, or into a similar receptacle that the addressee has put up for the purpose of receiving mail, and which according to general practice is suited to store mail securely . By this placement, the document shall be deemed served. The person so serving it shall note the date of service on the envelope of the document to be served. ”

Article 181 of the Code of Civil Procedure - Substituted service by deposit of a letter of notification

“(1) Should it not be possible to serve the document pursuant to section 178 (1) number 3 or section 180, the document to be served may be deposited wit h the court registry of the district court having jurisdiction for the place of service. ... A letter of notification of such deposit is to be submitted at the address of the person on whom documents are to be served, using the corresponding form in the manner usual for the delivery of regular letters, or, should this not be possible, the written notice is to be affixed to the door of the residence, ... Upon such written notification having been submitted, the document shall be deemed served. The person so serving it shall note the date of service on the envelope of the document to be served . ... ”

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention that her right to a fair trial, especially her right of access to court was infringed by the decision of the domestic courts not to admit her objection against the penal order. She is of the view that the legal preconditions required by the domestic courts for the refutation of the alleged delivery of a penal order which had been certified by a notice of delivery , and the preconditions for the proof that she had been prevented from lodging an objection through no fault of her own, were so strict that it was de facto impossible to overcome the probative value of the notice of delivery. In this way the domestic courts deprived her of the possibility to obtain a court hearing and to defend herself before a judge, in breach of her rights under Article 6 § 1 of the Convention.

QUESTION TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charge against her, in accordance with Article 6 § 1 of the Convention?

In particular, was her right of access to court respected by the procedure followed by the domestic court?