CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 4 septembre 1990

.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. 12129/86                       by Hans-Dieter HENNINGS                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 4 September 1990, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                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 16 April 1986 by Hans-Dieter Hennings against the Federal Republic of Germany and registered on 18 April 1986 under file No. 12129/86;           Having regard to   -         the observations submitted by the respondent Government on 4 January 1989 and the observations in reply submitted by the applicant on 19 May 1989;   -        the submissions of the parties at the hearing on 4 September 1990;           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 national born in 1945, is a civil servant resident in Oberaudorf in the Federal Republic of Germany. Before the Commission he is represented by Freiherr von Ritter zu Groenesteyn, a lawyer practising at Marzell in the Federal Republic of Germany.   I.     Particular circumstances of the case           On 15 April 1984 the applicant and his son boarded, at Kufstein in Austria, a train in the direction of Munich.   In the course of a dispute with the train conductor, the latter took away documents from the applicant who then apparently grasped the conductor's shoulders, withdrew the documents and threw them on the floor.   In the course of this dispute the applicant's son hit the conductor on the head with a wooden stick.           On 25 April 1984 the Railway Police (Bahnpolizei) of the German Federal Railway (Deutsche Bundesbahn) questioned the applicant as to the occurrences.   The latter replied that he would not make any statement, and that he would obtain a lawyer.           Subsequently, the applicant's wife was invited to give evidence.   On 30 May 1984 the applicant's lawyer replied that the applicant's wife would exercise her right under the German Code of Criminal Procedure (Strafprozessordnung) to refuse to give evidence.           On 12 July 1984 the Kiefersfelden customs police reported the incident to the Public Prosecutor's Office at the Traunstein Regional Court (Landgericht), stating that all necessary investigation as well as the questioning of the witnesses and of the accused had already taken place.           On 7 August 1984 the Public Prosecutor's Office (Staatsanwaltschaft) at the Traunstein Regional Court (Landgericht) wrote a letter (Schreiben) to the applicant, stating that he was charged with the offence of compulsion.   The applicant was further told that if he paid a fine of 300 DM before 1 October 1984, no public action (öffentliche Klage) would be brought against him.   However, as a further condition he would have to agree to this termination of the proceedings by sending in an enclosed form by 20 September 1984.           The letter also stated that if the applicant did not reply (ohne weitere Benachrichtigung) he would be indicted (wird Anklage erhoben) without further notification.           The applicant did not send in the form, nor did he pay the 300 DM.           On 7 November 1984 the Rosenheim District Court (Amtsgericht), in summary proceedings, issued a penal order (Strafbefehl) in which it sentenced the applicant to 25 daily rates of 40.- DM for committing the offences of compulsion and dangerous bodily injury to the conductor.           The penal order concerning the applicant was served on 12 November 1984.   As neither the applicant not his wife were at home, the penal order was served by depositing (Niederlegung) it at the Oberaudorf Post Office and leaving a notification thereof in his letter box.           The penal order acquired legal force on 20 November 1984 as the applicant did not lodge an objection until 19 November 1984.           On 23 November the applicant's wife stated in an affidavit (eidesstattliche Versicherung) that she had been absent from 6 until 20 November 1984 when she returned home.   She had then opened the letter box, seen the notification, and collected the penal order at the post office.   During her absence the applicant had stayed at home and worked as usual.   However, he had no key for their letter box.           On 26 November 1984, the applicant, represented by counsel, filed an objection against the penal order together with a request to be reinstituted into the proceedings (Wiedereinsetzung in den vorigen Stand), claiming that his wife had only opened the letter box on 20 November 1984.   The applicant joined the affidavit of his wife of 23 November 1984.           The applicant's objection and his request for reinstitution reached the Rosenheim District Court on 27 November 1984.           Following a request for information by the Public Prosecutor's Office at the Traunstein Regional Court, the Oberaudorf Post Office stated in a note dated 3 December 1984 that the penal order had been collected by the applicant's wife on 19 November 1984.           On 6 December 1984 the Rosenheim District Court dismissed the applicant's request for reinstitution into the proceedings on the ground that, as the information of the Oberau Post Office confirmed, the applicant had duly received the penal order on 19 November 1984, on which day he could still have filed an objection within the time-limit.   Moreover, the applicant had not filed his request for reinstitution into the proceedings within the time-limit stated in Section 45 of the Code of Criminal Procedure (see below Relevant domestic law).           On 14 December 1984 the applicant's wife made a second affidavit in which she supplemented her first affidavit of 23 November 1984.   She stated that she had personally fetched the penal order at the Oberaudorf Post Office on 19 November 1984, though she had only handed it to the applicant on 20 November 1984 as she had not wanted to irritate (aufregen) her husband the evening before.           On 24 January 1985 the Traunstein Regional Court dismissed the applicant's appeal (Beschwerde).   The Regional Court noted in particular the discrepancy between the affidavit of the applicant's wife of 23 November 1984 and information supplied by the Oberaudorf Post Office.   The Court noted furthermore that the discrepancy between her first and second affidavit had not been explained either.   There existed therefore a suspicion that she had given a false affidavit, and her statements could not be trusted.           On 17 October 1985 the Federal Constitutional Court (Bundes- verfassungsgericht) refused to admit the applicant's constitutional complaint (Verfassungsbeschwerde) on the ground that it offered no prospect of success.   The Constitutional Court considered that, if on 19 November 1984, i. e. the last day of the time-limit, the applicant knew about the penal order, he could be expected immediatly to file the objection in time.   He could, for instance, have filed an objection by telex.   In any event, he had not been prevented through no fault of his own from filing the objection in time on the ground that he had not taken sufficient measures for his mail to reach him. Thus, even though he was not absent while his wife was away, he failed to ensure that their letter box could be opened and that, after her return, mail was duly brought to his attention.   II.      Relevant domestic law           A penal order is issued, without trial, in cases concerning minor offences.   According to S. 409 of the Code of Criminal Procedure, in the version in force at that time, the penal order does not acquire legal force if an objection is filed within seven days after the penal order has been served.   This was also stated in the penal order concerning the applicant.   The objection which need not be substantiated must be filed in writing or otherwise recorded (zu Protokoll) at the office concerned, whereupon trial proceedings are instituted in respect of the charges stated in the penal order.           Section 410 of the version of the Code of Criminal Procedure in force since 27 January 1987 provides for a time-limit of two weeks for filing an objection against a penal order.           As regards the procedure of serving documents (Zustellung) Section 37 of the Code of Criminal Procedure refers to the Code of Civil Procedure (Zivilprozessordnung).   The latter provides in Section 182 that, if a document cannot be personally served, it may be deposited inter alia at a post office;   a written notification of the deposition must then be given to the person concerned as is usually done in the case of normal letters (in der bei gewöhnlichen Briefen üblichen Weise).           According to Section 44 of the Code of Criminal Procedure, reinstitution into the proceedings is granted where a person, through no fault of his own, is prevented from meeting a time-limit (ohne Verschulden verhindert, eine Frist einzuhalten).   Section 45 of the Code of Criminal Procedure states that the application for reinstatement must be made within one week of the hindrance ceasing to exist.   COMPLAINTS           The applicant complains under Article 6 of the Convention of the short time-limit for filing an objection against a penal order and that the latter was not served on him personally.   Under Article 14 of the Convention together with Article 6 he complains that, while he had one week for the objection, the Public Prosecutor's Office had three months time to indict him.   The applicant does not complain about the reinstitution proceedings as such.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 16 April 1986 and registered on 18 April 1986.           On 11 October 1988 the Commission decided to communicate the application to the respondent Government and to invite them to submit written observations on the admissibility and merits of the application.           The Government's observations were submitted on 4 January 1989.   After two extensions of his time-limit, the applicant submitted his observations in reply on 19 May 1989.           On 11 October 1989 the Commission decided to invite the parties to a hearing on the admissibility and merits of the complaint under Article 6 para. 1 of the Convention concerning the circumstances in which the penal order was served on the applicant.           Following two postponements, the hearing took place on 4 September 1990.   The respondent Government were represented by their Agent, Mr.   J. Meyer-Ladewig and Mr.   G. Uhink, Amtsrat, both of the Federal Ministry of Justice.   The applicant, who attended the hearing in person, was assisted by his lawyer, Mr.   G. Freiherr von Ritter zu Groenesteyn.   THE LAW           The applicant complains of the short time-limit for filing an objection against a penal order which was not served on him personally.    He submits that he had only some hours in the evening of 19 November 1984 to file an objection in time.   The applicant relies on Article 6 para. 1 (Art. 6-1) of the Convention which states, insofar as it is relevant:   "In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law."           The applicant also complains under Article 14 together with Article 6 (Art. 14+6) of the Convention that the Public Prosecutor's Office had three months to indict him whereas he only had seven days to file the objection.   Article 14 (Art. 14) of the Convention states:   "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."           The Government submit that, in view of the special features of the proceedings concerning penal orders for minor offences, the time-limit of one week to file an objection does not violate Article 6 (Art. 6) of the Convention.   In case of objection, which requires no reasoning, the accused is committed for trial and is then given the necessary time to prepare his defence.   Periods of absence for professional reasons or holidays can be taken into account upon request for reinstatement into the proceedings.           The Government contend that in the present case the penal order acquired legal force on the ground that the applicant failed to show that he was prevented through no fault of his own from filing his objection in time.    In fact the applicant, whose objection and request to be reinstituted into the proceedings were received by the Rosenheim District Court only on 27 November 1984, did not even comply with the time-limit stated in Section 45 of the Code of Criminal Procedure for filing a request for reinstitution.           The Commission finds that the application raises questions of fact and law which are of such complexity that their determination requires an examination of the merits.   The application is therefore not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other ground for declaring it inadmissible has been established.           For these reasons, the Commission           DECLARES THE APPLICATION ADMISSIBLE,         without prejudging the merits of the case.        Secretary to the Commission            President of the Commission                 (H.C. KRÜGER)                          (C.A. NØRGAARD)