Information Note on the Court’s case-law 199

August-September 2016

Marc Brauer v. Germany - 24062/13

Judgment 1.9.2016 [Section V]

Article 6

Criminal proceedings

Article 6-1

Access to court

Unduly formalistic refusal to reinstate appeal proceedings lodged with wrong court by psychiatric patient: violation

Facts – In his application to the European Court the applicant complained that he had been denied a ccess to a court in violation of Article 6 § 1 of the Convention. In the domestic proceedings the applicant had sought to appeal against an order by a Regional Court for his confinement in a psychiatric hospital. The applicant, who had a previous history o f psychiatric treatment, was in court with his court-appointed lawyer when the order was made and immediately stated that he wanted a change in representation and to appeal against the decision himself. The presiding judge informed him of the time (seven d ays) and form for lodging an appeal and the court-appointed lawyer also sent him a letter advising on the procedure. The applicant then typed up and signed his appeal, but sent it to the wrong court and it did not reach the correct destination until after the time-limit had expired. The applicant’s request to the Federal Court of Justice to reinstate the proceedings under Article 44 of the Code of Criminal Procedure on the grounds that he was not responsible for the failure to comply with the time-limit was rejected, despite the applicant’s contention that the letter of advice he had received from his court-appointed lawyer was misleading.

Law – Article 6 § 1: Although short, the seven-day time-limit for appealing did not of itself raise an issue under Artic le 6 § 1 as (a) it did not concern the motivation of the appeal (for which a different time-limit applied) and (b) appellants who, through no fault of their own, were prevented from complying with the time-limit could apply for reinstatement of the proceed ings under Article 44 of the Code of Criminal Procedure as the applicant had done.

The Court observed that the Federal Court of Justice’s finding that the appeal was lodged out of time was primarily based on the fact that the applicant had addressed his wr itten appeal to the wrong court. The decisive issue was thus whether the applicant’s mistake had justified denying him access to a second-instance court. The Court found that it had not. An accumulation of extraordinary factors had affected the lodging of the appeal: the applicant was particularly vulnerable as he was deprived of his liberty in a psychiatric hospital; his court-appointed lawyer had terminated his mandate and had given potentially misleading advice about the procedure for appealing; and it h ad taken several days for the appeal to be forwarded through the postal services to the correct court.

Bearing in mind that the applicant had already announced in the courtroom his wish to appeal, the Federal Court of Justice’s decision to refuse reinstate ment of the proceedings was not proportionate. To hold otherwise would be too formalistic and contrary to the principle of practical and effective application of the Convention. The applicant’s right of access to a court had thus been restricted in such a way and to such an extent that the very essence of the right was impaired.

Conclusion : violation (unanimously).

Article 41: no claim made in respect of damage.

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

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