CEDH · CASELAW;REPORTS;ENG — 30 mai 1991

.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 }    EUROPEAN COMMISSION OF HUMAN RIGHTS   Application No. 12129/86   Hans-Dieter HENNINGS   against   THE FEDERAL REPUBLIC OF GERMANY   REPORT OF THE COMMISSION   (adopted on 30 May 1991)   TABLE OF CONTENTS                                                                  PAGE   I.       INTRODUCTION         (paras. 1 - 17) ........................................   1           A.       The application                 (paras. 2 - 4) .................................   1           B.       The proceedings                 (paras. 5 - 13) ................................   1           C.       The present Report                 (paras. 14 - 17) ...............................   2     II.      ESTABLISHMENT OF THE FACTS         (paras. 18 - 41) .......................................   3           A.       The particular circumstances of the case                 (paras. 18 - 37) ...............................   3           B.       Relevant domestic law                 (paras. 38 - 41) ...............................   5     III.     OPINION OF THE COMMISSION         (paras. 42 - 70) .......................................   7           A.       Complaint declared admissible                 (para. 42) .....................................   7           B.       Points at issue                 (para. 43) .....................................   7           C.       Article 6 para. 1 of the Convention                 (paras. 44 - 62) ...............................   7           D.       Article 14 of the Convention                 (paras. 63 - 68) ...............................   10           E.       Recapitulation                 (paras. 69 - 70) ...............................   10             DISSENTING OPINION OF SIR BASIL HALL, MRS. J. LIDDY,         MM. L. LOUCAIDES AND A.V. ALMEIDA RIBEIRO IN REGARD TO         ARTICLE 6 PARA. 1 OF THE CONVENTION                                                                   11   APPENDIX I       :   HISTORY OF THE PROCEEDINGS ..............       13     APPENDIX II      :   DECISION ON THE ADMISSIBILITY ...........       14   I.     INTRODUCTION   1.       The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.     A.       The application   2.       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.   3.       The application is directed against the Federal Republic of Germany.   The Government are represented by their Agent, Mr.   J. Meyer-Ladewig, Ministerialdirigent, of the Federal Ministry of Justice.   4.       The case relates to the applicant's complaints under Article 6 of the Convention, and Article 14 of the Convention taken together with Article 6 about the short time-limit for filing an objection against a penal order, and that the latter was not served on him personally.     B.       The proceedings   5.       The application was introduced on 16 April 1986 and registered on 18 April 1986.   6.       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.   7.       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.   8.       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.   9.       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, also 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.   10.      Following the hearing the Commission declared the application admissible.   11.      The parties were then invited to submit any additional observations or further evidence they wished to submit.   The Government were also invited to submit certain further information.   12.      The Government submitted the information requested as well as further submissions on 19 November 1990.   The applicant submitted further observations on 19 December 1990.   13.      After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions the Commission now finds that there is no basis on which a friendly settlement can be effected.     C.       The present Report   14.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes in plenary session, the following members being present:                MM.   C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO           The text of the Report was adopted by the Commission on 30 May 1991 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   15.      The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is           (1)      to establish the facts, and           (2)      to state an opinion as to whether the facts                 found disclose a breach by the State concerned of                 its obligations under the Convention.   16.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application forms Appendix II.   17.      The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.      ESTABLISHMENT OF THE FACTS     A.       Particular circumstances of the case     18.      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.   19.      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.   20.      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.   21.      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.   22.      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 (Nötigung).   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 and no entry would be made in the criminal register (Strafregister). 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.   23.      The letter also stated that if the applicant did not reply (ohne weitere Benachrichtigung) he would be indicted (wird Anklage erhoben) without further notification.   24.      The applicant did not send in the form, nor did he pay the 300 DM.   25.      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.   26.      The penal order concerning the applicant was served on 12 November 1984.   As neither the applicant nor 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.   27.      The penal order acquired legal force on 20 November 1984 as the applicant did not lodge an objection within the time-limit.   28.      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.   29.      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.   30.      The applicant's objection and his request for reinstitution reached the Rosenheim District Court on 27 November 1984.   31.      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.   32.      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).   33.      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.   34.      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.   35.      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.   36.      The decision continues:   [Translation]   "Even if, however, the applicant could no longer have lodged an objection in time on 19 January 1984, he would not have been hindered from complying with the time-limit for filing an objection through no fault of his own.   It is in principle up to the receiver himself to take sufficient measures that mail reaches him.   Herein the applicant noticeably failed.   Even though during his wife's absence he himself was not away from home, he did not take care of the content of the letter box or adequately ensure that the letterbox could be opened despite its missing key.   If therefore the applicant only obtained knowledge of the penal order so shortly before the time-limit for filing the objection expired, with the result that an objection could not be filed in time, this does not imply the conclusion that the applicant missed the time-limit through no fault of his own."   [German]   "Selbst wenn der Beschwerdeführer jedoch am 19.   November 1984 einen Einspruch nicht mehr rechtzeitig hätte einlegen können, wäre er an der Wahrung der Einspruchsfrist nicht ohne eigenes Verschulden gehindert gewesen.   Es ist grundsätzlich Sache des Empfängers selbst, ausreichende Vorkehrungen dafür zu treffen, dass ihn Zustellungen erreichen.   Hieran hat es der Beschwerdeführer erkennbar fehlen lassen.   Obgleich er selbst während der Abwesenheit seiner Ehefrau nicht ortsabwesend war, hat er sich um den Inhalt seines Briefkastens nicht gekümmert und nicht in geeigneter Weise dafür Sorge getragen, dass der Briefkasten trotz des fehlenden Schlüssels hierzu geöffnet werden konnte.   Wenn der Beschwerdeführer deshalb von dem Strafbefehl erst so kurz vor Ablauf der Einspruchsfrist Kenntnis nehmen konnte, dass ein rechtzeitiger Einspruch nicht mehr möglich war, zwingt dies nicht zu der Annahme, der Beschwerdeführer habe die Einspruchsfrist ohne eigenes Verschulden versäumt."   37.      The Federal Constitutional Court concluded that if the applicant left the handling of his mail (Postannahme) to other persons, it could be expected from him that he undertook the necessary measures that he received the mail completely and in time.     B.      Relevant domestic law   38.     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.   39.      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.   40.      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 deposit 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).   41.      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.   III.   OPINION OF THE COMMISSION     A.       Complaint declared admissible   42.      The Commission has declared admissible the applicant's complaints under Article 6 para. 1 (Art. 6-1) of the Convention and Article 14 (Art. 14) of the Convention taken together with Article 6 (Art. 6) about the short time-limit for filing an objection against a penal order, and that the latter was not served personally on him.   B.       Points at issue   43.      Accordingly, the issues to be determined are   -        whether there has been a violation of Article 6 para. 1         (Art. 6-1) of the Convention, and   -        whether there has been a violation of Article 14 (Art. 14) of the         Convention taken together with Article 6 (Art. 6).     C.       Article 6 para. 1 (Art. 6-1) of the Convention     44.      Article 6 para. 1 (Art. 6-1) of the Convention 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."   45.      The applicant complains of the short time-limit for filing an objection against a penal order and that it was not served on him personally.   He submits that it is not established with certainty whether his wife handed him the penal order on 19 or on 20 November though he should be granted the benefit of the doubt that it was the 20 November 1984.   46.      The applicant further points out that the effects of a conviction remain the same, whether it is pronounced in regular criminal proceedings or in penal order proceedings.   In the present case, he had no rights of defence.   Moreover, the letter of the Public Prosecutor's Office of 9 August 1984 did not refer to the possibility of an ensuing penal order.   The letter solely mentioned the offence of compulsion, whereas in the penal order he was convicted, in addition, of dangerous bodily injury.   47.      The Government contend 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.   Absences for professional reasons or holidays can be taken into account upon request for reinstatement into the proceedings.   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.   48.      The Government further submit that the applicant, whose objection and request to be reinstituted into the proceedings were received by the Rosenheim District Court only on 27 November 1984, in fact did not even comply with the time-limit stated in Section 45 of the Code of Criminal Procedure for filing a request for reinstitution.   49.      The Commission recalls that the right of access to court is the constituent element of the right to a fair trial, as guaranteed in Article 6 para. 1 (Art. 6-1) of the Convention.   However, this right is not absolute, but subject to implied limitations.   Furthermore, criminal proceedings providing for a waiver of the right to have one's case dealt with by a tribunal in a full trial, have advantages for the individual concerned as well as for the administration of justice and do not in principle offend against the Convention (see Eur.   Court H.R., Deweer judgment of 27 February 1980, Series A No. 35, p. 25 et seq., para. 49).   The individual may frequently prefer not to stand trial in public.   50.      The Commission considers that for these reasons penal order proceedings do not affect the right of the accused to a fair hearing before a court, if the accused can effectively object to the penal order and thus bring about a normal trial.   51.       The Commission considers that the responsibility for the institution and due conduct of criminal proceedings against a person lies in principle with the competent authorities themselves, and it cannot be expected from the defendant to contribute towards his own conviction.   Thus, where the communication of the penal order is relevant for the calculation of the time-limit to file an objection, an issue may arise under Article 6 para. 1 (Art. 6-1) of the Convention as to the access to court.   In this respect the Commission considers that strict conditions must govern the serving of the penal order on the person concerned.   Adequate safeguards must be provided for persons who through no fault of their own have been prevented from complying with the time-limit.   Nevertheless, where adequate safeguards exist, it is compatible with Article 6 para. 1 (Art. 6-1) of the Convention if the national authorities provide certain limits to an abuse of these safeguards, for instance, if it is attempted to obstruct the due conduct of criminal proceedings by deliberately avoiding the serving of certain documents.   52.      In the present case, the Commission notes that the penal order was served on the applicant on 12 November 1984.   However, as neither he nor his wife were at home, the penal order was deposited at the post office, and a notification was put in the applicant's letter box.   53.      The applicant then had the right under German law in force at that time to lodge an objection against the penal order within seven days.   Moreover, the applicant was entitled to request reinstitution into the proceedings after expiry of the time-limit if he had been prevented through no fault of his own - e.g. absence for professional reasons or holidays - from lodging his objection in time.   54.      The Commission further observes that the penal order against the applicant acquired legal force on the ground that he failed to lodge an objection in time.   His request for reinstitution was dismissed by the German courts, inter alia, on the ground that he had not shown that he had been prevented through no fault of his own from lodging his objection in time.   55.      It is true that in the applicant's submissions he was effectively barred from access to a court as the time-limit was too short and the penal order was not served on him personally.   56.      The Commission notes that according to the German law applicable at the time (see above, para. 38), the time-limit for filing an objection against a penal order amounted to seven days. Although rather short this time-limit cannot be seen as contradicting the Convention since German law provides for reinstitution whenever the person concerned was not, without his own fault, able to object in time.   57.      The Commission observes that on 25 April 1984 the applicant was heard by the Railway Police.   Thereafter he was aware that criminal proceedings were pending against him.   On 30 May 1984 the applicant's lawyer filed a communication with the prosecuting authorities.   On 7 August 1984 the Public Prosecutor's Office informed the applicant that no public action would be brought against him if he paid a fine of 300 DM and returned a form.   Furthermore, there would be no entry in the criminal register.   58.      In such circumstances the Commission considers that the applicant, who was represented by a lawyer, must have been aware of the summary nature of these criminal proceedings and that, having failed to pay the fine, the outcome in the imminent future would most likely be a penal order.   59.      The Commission furthermore notes that in the days after the penal order was deposited and a notification put in the applicant's letter box, the applicant stayed at home and worked as usual.   However, he states that he had no key for his letter box which could then only be opened by his wife.   The latter, however, was absent until 19 November 1984.   60.      In the Commission's opinion, in such a situation the applicant could reasonably be expected to obtain a key to his letter box in order to have ready access to any mail addressed to him, or at least to ensure that other persons entrusted with the key would forward him his mail quickly and completely.   While a system which requires the personal serving of documents on the accused presents certain safeguards the Commission cannot find that the use of normal postal communications by the competent authorities raises as such an issue under Article 6 (Art. 6) of the Convention.   61.      If the applicant failed to undertake these precautions, it cannot be said that in the present case the authorities unfairly barred the applicant's access to a court within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   Conclusion   62.      The Commission concludes, by 9 votes to 4, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.     D.       Article 14 (Art. 14) of the Convention   63.      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."   64.      The applicant complains under Article 14 (Art. 14) of the Convention taken together with Article 6 (Art. 6) that the Public Prosecutor's Office had three months to indict him whereas he only had seven days to file the objection.   65.      The Government submit that at that stage of the proceedings the Public Prosecutor's Office has different functions.   In particular, the Public Prosecutor's Office must carefully investigate all incriminating and exonerating circumstances of the case.   66.      The Commission considers that an issue could arise under these provisions if, at a certain stage in court proceedings, the Public Prosecutor's Office, for instance, was at an advantage in having more time to submit pleadings than the accused (see No. 10092/82, Dec. 5.10.85,   Baraona v.   Portugal, D.R. 40 p. 118 at p. 136 f).   67.      However, in the Commission's opinion, the present case falls to be distinguished from the above situation.   In particular, the applicant is comparing two different stages of the proceedings, namely, on the one hand, the preparation by the Public Prosecutor's Office of the indictment before the penal order is issued and, on the other, the time-limit to file, without further substantiation, an objection after the penal order has been served.     Conclusion   68.      The Commission concludes, by 12 votes to 1, that there has been no violation of Article 14 (Art. 14) of the Convention taken together with Article 6 para. 1 (Art. 6-1).     E.       Recapitulation   69.      The Commission concludes, by 9 votes to 4, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 62).   70.      The Commission concludes, by 12 votes to 1, that there has been no violation of Article 14 (Art. 14) of the Convention taken together with Article 6 para. 1 (Art. 6-1) (para. 68).     Secretary to the Commission                 President of the Commission              (H.C. KRÜGER)                             (C.A. NØRGAARD)   Dissenting Opinion of Sir Basil HALL, Mrs.   J. LIDDY, MM. L. LOUCAIDES and A.V. ALMEIDA RIBEIRO in regard to Article 6 para. 1 of the Convention           We find ourselves unable to agree with the opinion of the majority of the Commission that there was no violation of Article 6 para. 1 of the Convention in this case.           On 7 November 1984 the Rosenheim District Court, without a trial, issued a penal order sentencing the applicant to a fine for compulsion (Nötigung) of and inflicting grievous bodily harm (gefährlichen Körperverletzung) on a female railway official.   This sentence became definitive on 20 November 1984.           Plainly a criminal charge was involved.   Equally plainly in the determination of that charge no public hearing at which the applicant was present was held.           The European Court of Human Rights has in several occasions held that a person may of his own free will either expressly or tacitly waive the right given by Article 6 para. 1 to a public hearing.   However, a waiver must be made in an unequivocal manner, and must not run counter to any important public interest (see for example the Håkansson and Sturesson judgment of 21 February 1990, Series A No. 171, page 20 para. 66).   The Court has recently remarked: "Waiver of a right guaranteed by the Convention - in so far as it as permissible - must be established in an unequivocal manner". (Oberschlick v.   Austria judgment of 23 May 1991, to appear as Series A No. 204, p. 17 para. 51)           In the Deweer case (Eur.   Court H.R. judgment of 24 February 1990, Series A No. 35), Mr.   Deweer had been told by the Procureur du Roi that criminal proceedings against him could be settled on payment of 10,000 Belgian francs within 8 days.   Mr.   Deweer made the payment and settled the proceedings.   The European Court of Human Rights commented (p. 25 para. 49) that this type of waiver had undeniable advantages for the individual concerned as well as for the administration of justice, and did not in principle offend against the Convention, but concluded (p. 29 para. 54) that on the facts of the case the waiver was tainted by constraint.           In this case there was a system for settlement of criminal charges comparable to that in the Deweer case.   The Public Prosecutor on 7 August 1984 proposed a settlement on a charge of compulsion on the payment of 300 DM, on payment of which there would be no charge and no entry in the criminal register.   The applicant did not reply and no waiver of his rights was made or could be inferred.   Summary proceedings were instituted and the Rosenheim District Court issued a penal order relating not only to compulsion but also to grievous bodily harm.   This penal order would become a definitive conviction and sentence unless objection was taken to it within 7 days of service.   The Court regarded the order as having been served on 12 November 1987, when it was deposited at the Oberaudorf Post Office.   A notification of that having been done was put in the applicant's letter box.   No objection having been received, the order became definitive on 20 November 1987.   According to the applicant it was on that day he first saw the order, his wife having been away and having taken the key to the letter box with her.           The question is whether the applicant did waive his right to a public trial to which the guarantees provided by Article 6 could apply.           Where the public interest permits a waiver, even if the charge is of a minor offence, the question arises whether it is incompatible with Article 6 for a law to provide that, if no reply is given to a notice which in effect requests waiver of an Article 6 right, that right shall be deemed to have been waived.   We do not find it necessary to express an opinion on that point.   Even if such a system was compatible with Article 6 it is essential that the individual to whom the notice is addressed should be subjected to no constraint, and furthermore must have a realistic opportunity and sufficient time to consider whether he should waive his rights.   If a time limit has passed the authorities must be very ready to re-open the matter and to reinstitute proceedings if need be if it becomes apparent that no waiver was intended.           Time for consideration whether there should or should not be a waiver of a Convention right can only begin to run at the time at which the individual becames aware of the proposal.   There was no personal service in this case nor was the document delivered by a postman to a person authorised to receive it at Mr.   Hennings' house. There was no certainty when he would first see it.   In the circumstances of this case the document was not, according to the applicant, seen by him until 20 November 1987 the date on which the penal order became definitive.           A decision as to whether in such a case an objection should be made is not one to be taken in a hurry.   The practical consequences have to be considered, and there will usually be a need to consult a lawyer before making a decision.   There was the complication that an additional offence had been added.   There may well have been the need to take into account the fact that the applicant was himself a railway official.   The formulation of an objection is not necessarily a simple matter.   The Court was some 25 km away.   A requirement that a person must deliver his decision within 7 days of his receiving a notice as to whether he wishes to waive a Convention right or not would in our view be too rigid.           We note that the applicant took no step to deal with his mail during his wife's absence.   In our view he was not under an obligation to do so, but in any case that can have no bearing on the question whether he has waived his Convention rights.           In our opinion the applicant did not either expressly or tacitly waive his rights under Article 6 para. 1.   His application for reinstitution in the proceedings was refused.   There was accordingly a violation of Article 6 para. 1 of the Convention.   APPENDIX I     HISTORY OF PROCEEDINGS       Date                         Item ________________________________________________________________________     16 April 1986                Introduction of the application   18 April 1986                Registration of the application       Examination of Admissibility     11 October 1988              Commission invites the respondent                             Government to submit observations                             on the admissibility and merits   4 January 1989               Submission of Government's observations   19 May 1989                  Submission of applicant's observations                             in reply   11 October 1989              Commission's decision to invite the                             parties to an oral hearing   4 September 1990             Oral hearing; Commission's deliberations                             on the merits; application declared                             admissible       Examination of the merits     12 January 1990 )            Commission's consideration of the 13 April 1991    )            state of proceedings   28 May 1991                  Commission's deliberations on the merits                             and final vote   30 May 1991                  Adoption of the Report