CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 janvier 1988

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                              AS TO THE ADMISSIBILITY OF                         Application No. 12304/86                       by K.                       against the Federal Republic of Germany           The European Commission of Human Rights sitting in private on 21 January 1988, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   H.C. KRÜGER Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 4 April 1986 by K. against the Federal Republic of Germany and registered on 4 August 1986 under file No. 12304/86;           Having regard to   -        the observations submitted by the respondent Government on         27 February 1987 and the observations in reply submitted by         the applicant on 28 April 1987;   -        the parties' submissions at the oral hearing of 21 January 1988;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as submitted by the parties, may be summarised as follows:           The applicant, a German citizen born in 1932, is a businessman residing in Berlin.   Before the Commission he is represented by Messrs Kärgel, Poggendorf, Beuermann and Stoecker, lawyers practising in Berlin.   The present application was signed by Mr Stoecker.           On 14 September 1983 the applicant, who runs a chemicals factory, was convicted by the Tiergarten District Court (Amtsgericht) of attempted water pollution and environmentally harmful waste disposal and sentenced to nine months' imprisonment.   However, the execution was suspended for a probationary period of two years.           The applicant's appeal (Berufung) against this judgment was rejected by the Berlin Regional Court (Landgericht) on 23 May 1985.           The lawyer who had defended the applicant before the Regional Court then lodged an appeal on points of law (Revision).   Thereafter, the applicant charged Mr Kärgel, of the above law firm, to represent him in the appeal proceedings.           On 23 August 1985, the last day before the expiry of the time-limit, Mr Kärgel submitted the grounds for the appeal on points of law.   Counsel generally alleged a violation of substantive law and added he would submit further arguments which he had not yet been able to formulate as he had been charged with the case only shortly before. The statement was signed by Mr Kärgel himself with the typewritten supplement underneath the signature: "counsel" (Rechtsanwalt).           On 17 October 1985 the Court of Appeal (Kammergericht) declared the appeal inadmissible on the ground that the statement of 23 August 1985 had not been correctly signed.   The signature did not reveal the identity of the person who had signed the statement and therefore did not meet the requirements of Section 345 para. 2 of the Code of Criminal Procedure (Strafprozessordnung - StPO) as interpreted by the German courts.   Accordingly the statement was found to be without legal effect.           On 1 November 1985, Mr Stoecker, another lawyer of the same law firm, who had officialy been appointed as Mr Kärgel's representative, requested leave to appeal out of time (Antrag auf Wiedereinsetzung gegen die Versäumung der Revisionsbegründungsfrist). The request was signed by Mr.   Stoecker.   His name was added in typewriting under his signature.           On 14 November 1985 the Court of Appeal rejected this request as being inadmissible on the ground that the application was likewise not correctly signed and did not meet the legal requirements.           On 28 November 1985, the applicant's lawyers made a second request for leave to appeal out of time.   This request was signed by Mr Kärgel with the typewritten supplement "Kärgel - Rechtsanwalt". Furthermore, counsel had added his name in parenthesis ("Kärgel") and in handwriting underneath his signature with every letter written out legibly.           This request was rejected as inadmissible by the Court of Appeal on 23 December 1985, again for not having been signed in accordance with the legal requirements.           On 21 January 1986, the applicant's defence counsel filed a third request for leave to appeal out of time.   He also challenged the impartiality of the judges concerned of the Court of Appeal.   This challenge was rejected on 10 April 1986 by a unanimous decision of the challenged judges for pursuing abusive purposes.   The request for reinstatement was declared inadmissible as being lodged out of time.     COMPLAINT           The applicant complains that the Court of Appeal by establishing too rigid requirements for the validity of his lawyers' signatures built up unjustified barriers and prevented the merits of his appeal on points of law from being heard in a fair manner.           The applicant invokes Article 6 of the Convention.       PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 4 April 1986 and registered on 4 August 1986.           On 2 December 1986, the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit written observations on its admissibility and merits pursuant to Rule 42 para. 2(b) of the Rules of Procedure.           The respondent Government's observations were submitted on 27 February 1987 and the applicant's reply thereto on 28 April 1987.           On 7 October 1987 the Commission decided to hold an oral hearing on admissibility and merits.   This hearing took place on 21 January 1988.   At the hearing the Government were represented by Mr.   J. Meyer-Ladewig, Agent, Ministerialdirigent of the Ministry of Justice, who was assisted by Mr.   H. Stöcker, Ministerialrat of the Federal Ministry of Justice.   The applicant was represented by Mr.   D. Stoecker.   SUBMISSIONS OF THE PARTIES   A.       The respondent Government   I.       As to the exhaustion of domestic remedies           The Government point out that the applicant had the possibility to request leave to appeal out of time.   In fact such a request was filed.   However, Mr.   Stoecker, representing the applicant's defence counsel, repeated the same mistake as had been made by Mr.   Kärgel, the consequences of which were to be removed by this request; the statement submitted by him showed a handwritten mark consisting of two scrawls which did not include a single legible letter of his name.           In the Government's opinion the requests for leave to appeal out of time were deliberately not signed in a manner required by the Court of Appeal.           This could be considered to constitute an abuse of the right of petition and also raised the question as to whether domestic remedies had been exhausted in an effective manner.   II.      As to the complaint under Article 6 para. 1 of the Convention           In any event the applicant's complaint was manifestly ill-founded.           Under the relevant provisions of the German Code of Criminal Procedure the grounds for an appeal on points of law must be lodged within a certain time-limit.   Section 345 para. 2 of the Code of Criminal Procedure further requires that the grounds of appeal are submitted in "a document signed by the defence counsel or a lawyer".           According to German case-law and doctrine a signature need not be legible.   It must however consist of characters which sufficiently reveal the identity of the undersigned.   Individual letters must at least be recognisable.   There must be an individual form of handwriting, which is unique, shows appropriate characteristic features and appears as the signature of a name, so that a third person, knowing the name, is able to recognise it when seeing the signature.           These requirements do serve legal certainty.   As regards statements of particular importance, the undersigned assumes full responsibility for the content of the statement.   A "signature" consisting of geometrical figures, marks and squiggles which does not reveal a single letter is not conform to these requirements.           It was of no relevance to compliance with a formal provision such as Section 345 para. 2 of the Code of Criminal Procedure whether the author of an illegible handwriting could be identified by other appropriate means.           The respondent Government point out that Article 6 of the Convention does not prevent the Contracting States from making access to existing domestic remedies dependent on certain conditions by means of statutory rules.   To this extent the Commission's task is limited to examining whether there has been abuse.   The provisions regarding signature of specific statements could not be seen as arbitrarily limiting access to appellate courts, nor could their strict interpretation and application by German courts.   A lawyer could without difficulty abide by these requirements.           Moreover, an accused whose lawyer inadvertently signed an appeal or the grounds for an appeal in an insufficient manner had the possibility to mend this error by requesting leave to appeal out of time.   Of course, such a request had to be signed in a correct manner. This was not at all impossible for the applicant's defence counsel.   If need be, an accused could submit the motions for appeal and the statement of the reasons to the court of appeal even without the assistance of a lawyer by having them recorded by the registry.           The Berlin Court of Appeal whose decision was complained of in the instant case did nothing but to apply the law in force. Rechtsanwalt Kärgel did not "sign" his written pleadings of 23 August 1985, but made a mark on it which resembled a graph curve that did not reveal a single letter of his name.   This mark did clearly not meet the requirements of Section 345 para. 2 of the Code of Criminal Procedure.           The 4th Criminal Division of the Berlin Court of Appeal had in recent years been obliged in numerous cases to reject appeals as inadmissible because they were not correctly signed by defence counsel.   The law firm involved in the present case already represented another applicant in an analogous application (Appl.   No. 10685/83) which was declared inadmissible for non-observance of the six months time-limit.   This showed that the lawyers concerned were familiar with the appellate court's interpretation and application of Section 345 para. 2 of the Code of Criminal Procedure but choose not to abide by it while other lawyers accepted to sign their submissions to the Court of Appeal in a manner meeting the strict requirements of that Court.           The fact that the validity of Mr.   Kärgel's signature as a notary public had never been called in question was of no relevance to the case under consideration.   Written pleadings under Section 345 para. 2 of the Code of Criminal Procedure had to be distinguished from notarial instruments.   In a notarial instrument the name of the authenticating notary is expressly mentioned in the introduction, whereas in the case of an illegible signature on the letter of a law firm consisting of several partners it is not possible to tell which of the lawyers has signed the letter and bears responsibility for it. Besides, authentication of private legal transactions by a notary did not affect the specific public interests that control an appeal in criminal matters.           The respondent Government accordingly ask the Commission to declare the application inadmissible for non-exhaustion of domestic remedies or, alternatively, as being manifestly ill-founded.   B.       The applicant   I.       As to the exhaustion of domestic remedies           The applicant points out that the previous application (No. 10685/83) referred to by the respondent Government was rejected for non-observance of the six months' rule (Article 26 of the Convention), because the Commission considered that a request for leave to appeal out of time was not an effective remedy that delayed the running of the six months' time-limit.           The applicant contests the Government's suggestion that his requests for leave to appeal out of time had deliberately been signed by his defence counsel in a manner unacceptable to the Court of Appeal.   He submits that his counsel signed these requests as he usually signs all documents.   II.      As to the complaint under Article 6 para. 1 of the Convention           The applicant maintains that the Court of Appeal applied Section 345 para.   2 of the Code of Criminal Procedure in a way contrary to Article 6 para. 1 of the Convention.           The only issue relevant to the application of this provision was whether the author of a statement who by signing the document concerned assumed responsibility for its contents can be identified. Therefore a defence counsel had to use his usual signature which is characteristic for him.           It would be contrary to the concept of legal certainty to request the defence counsel to use a different signature in his submissions to the Court of Appeal only.   Signing a document with a different signature would indicate that the defence counsel did not assume responsibility for the statement concerned.           Applicant's counsel submits that mainly the Fourth and also the Third Division of the Court of Appeal often reject appeals as being inadmissible for not having been correctly signed.   The applicant refers to a newspaper article published in November 1983 from which it appears that this practice of some divisions of the Court of Appeal was a matter of debate and criticism in the Legal Committee of the Berlin Diet (Abgeordnetenhaus).   It is submitted that neither Mr.   Kärgel nor Mr.   Stoecker have ever encountered difficulties with other divisions of the Court of Appeal in civil or criminal matters or with the Federal Court of Justice.           The applicant finally draws attention to the fact that Mr. Kärgel's signature has never been subject to criticism whilst acting in his capacity as notary public.   The office of a notary public is a public office and consequently affects public interests at least in the same way as an appeal in criminal matters.           Furthermore, in the instant case the name of the undersigning lawyer was typewritten under the signature in several of the statements concerned.   THE LAW           The applicant complains under Article 6 (Art. 6) of the Convention that he was deprived of his right to a fair hearing of his appeal on points of law because this appeal was dismissed as being inadmissible by the Berlin Court of Appeal for not having been signed correctly by his defence counsel.           Article 6 para. 1 (Art. 6-1) of the Convention secures to everyone charged with a criminal offence the right to a fair and public hearing.   This right includes the right of access to a court (Eur. Court H.R., Golder judgment of 7 May 1975, Series A no. 18, p. 18 para. 36, and Ashingdane judgment of 28 May 1985, Series A no. 93, p. 24 para. 55).   It is further recognised that the guarantees of Article 6 (Art. 6) of the Convention do also apply to appeal proceedings once a Contracting State has set up courts of appeal (Eur.   Court H.R., Delcourt judgment of 17 January 1970, Series A no. 11, p. 13 para. 25 and Axen judgment of 29 June 1982, Series A no. 72, p. 12 para. 27).           The Government first argue that the Commission is prevented from examining the merits of the applicant's complaint because his defence counsel failed to sign the requests for leave to appeal out of time in the way prescribed by law and that consequently domestic remedies were not effectively exhausted.   The Commission considers however that the question of whether or not the applicant's appeal on points of law and also his subsequent requests for leave to appeal out of time were correctly signed by counsel is closely related to the substance of the applicant's complaint.   In these particular circumstances the applicant can be considered to have exhausted domestic remedies.           As to the merits the Commission first recalls that according to its case-law Article 6 (Art. 6) does not debar Contracting States from making regulations governing the access of litigants to an appellate court as long as such regulations do not arbitrarily limit access to such court (No. 727/60, Dec. 5.8.60, Yearbook 3 p. 302 [308]; No. 8407/78, Dec. 6.5.80, D.R. 20 p. 179 [180]).           The requirement established by Section 345 para. 2 of the German Code of Criminal Procedure that an appeal on points of law has to be signed by the defence counsel or another lawyer does not in itself unduly restrict an accused's right to lodge an appeal, as was not contested by the applicant.   The interpretation of this provision by the German courts, that a signature need not be legible but must present certain characteristic features in order to have legal effect, can likewise not, in principle, be considered as arbitrary.           The question whether or not in a given case a signature presents such characteristics and conforms with the requirements of Section 345 para. 2 of the German Code of Criminal Procedure is a matter that has to be decided by the national courts.   The Commission's supervision is limited to an examination as to whether the interpretation and application of the provision in question might have involved a violation of any of the rights and freedoms set out in the Convention, in particular of Article 6 (Art. 6) of the Convention as alleged by the applicant.           The applicant argues that he was deprived of a fair hearing of his appeal on points of law because the Court of Appeal arbitrarily considered that the appeal was not correctly signed by his defence counsel.   The Commission recognises that from some lawyers' point of view the decisions complained of in the present case may appear to be excessively formalistic.           Nevertheless, however regrettable the appellate court's rigid application of Section 345 para. 2 of the German Code of Criminal Procedure may be, it cannot be found that the applicant was thereby denied access to this court.   In fact, according to the uncontested submissions of the respondent Government, the applicant would have been granted leave to appeal out of time had his defence counsel signed at least the request for such leave in conformity with the requirements of German law as interpreted by the Court of Appeal. Counsel had every reason to do so as he knew that the Court of Appeal considered his habitual signature as a squiggle that did not comply with the requirements of Section 345 para. 2 of the German Code of Criminal Procedure.   In the applicant's interest, he could therefore have signed the request for leave to appeal out of time in a way which would satisfy the Court.   It has not been alleged by the applicant that such a request would have been rejected.           In these circumstances it cannot be found that the Berlin Court of Appeal applied Section 345 para. 2 of the German Code of Criminal Procedure in such a manner as to deprive the applicant arbitrarily of any possibility to have the merits of his appeal on points of law decided by that Court.           It follows that the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.             For these reasons, the Commission             &_DECLARES THE APPLICATION INADMISSIBLE.&S       Secretary to the Commission              President of the Commission            (H.C. KRÜGER)                              (C. A. NØRGAARD)