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You are here: BAILII >> Databases >> European Court of Human Rights >> HENNINGS v. GERMANY - 12129/86 [1992] ECHR 79 (16 December 1992) URL: http://www.bailii.org/eu/cases/ECHR/1992/79.html Cite as: [1992] ECHR 79, 16 EHRR 83, (1993) 16 EHRR 83

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In the case of Hennings v. Germany*,

The European Court of Human Rights, sitting, in accordance

with Article 43 (art. 43) of the Convention for the Protection

of Human Rights and Fundamental Freedoms ("the Convention")** and

the relevant provisions of the Rules of Court, as a Chamber

composed of the following judges:

Mr R. Ryssdal, President,

Mr R. Bernhardt,

Mr L.-E. Pettiti,

Mr B. Walsh,

Mr J. De Meyer,

Mr N. Valticos,

Mr R. Pekkanen,

Mr A.N. Loizou,

Mr F. Bigi,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 29 May and

23 November 1992,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 68/1991/320/392. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since

its creation and on the list of the corresponding originating

applications to the Commission.

** As amended by Article 11 of Protocol No. 8 (P8-11), which came

into force on 1 January 1990.

_______________

PROCEDURE

1. The case was referred to the Court on 12 July 1991 by the

European Commission of Human Rights ("the Commission"), within

the three-month period laid down by Article 32 para. 1 and

Article 47 (art. 32-1, art. 47) of the Convention. It originated

in an application (no. 12129/86) against the Federal Republic of

Germany lodged with the Commission under Article 25 (art. 25) on

16 April 1986 by Hans-Dieter Hennings, a German citizen.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby the Federal

Republic of Germany recognised the compulsory jurisdiction of the

Court (Article 46) (art. 46). The object of the request was to

obtain a decision as to whether the facts of the case disclosed

a breach by the respondent State of its obligations under

Article 6 para. 1 (art. 6-1) taken alone and together with

Article 14 (art. 14+6-1).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated

that he wished to take part in the proceedings and designated the

lawyer who would represent him (Rule 30). The President gave the

lawyer leave to use the German language (Rule 27 para. 3).

3. The Chamber to be constituted included ex officio

Mr R. Bernhardt, the elected judge of German nationality

(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the

President of the Court (Rule 21 para. 3 (b)). On 29 August 1991

the President drew by lot, in the presence of the Registrar, the

names of the other seven members, namely Mr J. Cremona,

Mrs D. Bindschedler-Robert, Mr J. Pinheiro Farinha, Mr L.-E.

Pettiti, Mr N. Valticos, Mr R. Pekkanen and Mr F. Bigi

(Article 43 in fine of the Convention and Rule 21 para. 4)

(art. 43). Subsequently, Mr B. Walsh, Mr A.N. Loizou and

Mr J. De Meyer, substitute judges, replaced respectively

Mrs Bindschedler-Robert and Mr Pinheiro Farinha, who had

resigned, and Mr Cremona, whose term of office had expired, and

whose successors had taken up their duties before the hearing

(Rules 2 para. 3 and 22 para. 1).

4. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 para. 5) and, through the Registrar, consulted the Agent

of the German Government ("the Government"), the Delegate of the

Commission and the applicant's lawyer on the organisation of the

procedure (Rules 37 para. 1 and 38). In accordance with the

order made in consequence, the Registrar received on

16 December 1991 the Government's memorial and on

18 December 1991 the applicant's, as well as, on 14 April 1992,

the applicant's claim under Article 50 (art. 50). By letter of

15 May 1992 the Secretary to the Commission informed the

Registrar that the Delegate would submit his observations at the

hearing.

5. In accordance with the decision of the President - who had

also given the representatives of the Government leave to plead

in German (Rule 27 para. 2) - the hearing took place in public

in the Human Rights Building, Strasbourg, on 26 May 1992. The

Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr J. Meyer-Ladewig, Ministerialdirigent,

Federal Ministry of Justice, Agent,

Mrs E. Chwolik-Lanfermann, Richterin am

Oberlandesgericht, Federal

Ministry of Justice, Adviser;

(b) for the Commission

Mr A. Weitzel, Delegate;

(c) for the applicant

O.G. Freiherr von Ritter zu Groenesteyn, Lawyer.

The Court heard addresses by Mr Meyer-Ladewig for the

Government, by Mr Weitzel for the Commission and by

Freiherr von Ritter zu Groenesteyn for the applicant.

AS TO THE FACTS

I. The particular circumstances of the case

6. Mr Hans-Dieter Hennings is a German national born in 1945.

At the material time he was a civil servant resident in

Oberaudorf in Germany. He now lives in Tyrol, Austria.

7. On 15 April 1984 the applicant had an altercation with a

ticket collector, Ms Huber, on a train journey from Kufstein in

Austria to Munich. Mr Hennings allegedly ran after her, grabbed

her by the shoulder, snatched documents away from her and

scattered them on the floor in order to retrieve his railway

employee's pass that she had taken from him. Mr Hennings' six-

year-old son was also party to the dispute and allegedly hit

Ms Huber on the head several times with a wooden stick, causing

her a number of days' absence from work.

8. On 25 April 1984 the Railway Police questioned the applicant

about this incident. He said that he did not want to make a

statement and that he wished to instruct a lawyer.

9. The Kiefersfelden customs police submitted their final

report on the incident to the public prosecutor's office at the

Traunstein Regional Court (Landgericht).

10. In a standard-form letter of 9 August 1984, the public

prosecutor's office at the Traunstein Regional Court informed the

applicant that they were accusing him ("Die Staatsanwaltschaft

legt Ihnen zur Last") of the offence of coercion (Nötigung) under

section 240 of the German Criminal Code (Strafgesetzbuch). It

was stated that proceedings would not be brought against him

(öffentliche Klage) if he paid a fine of DM 300 by 1 October 1984

to the State Treasury, Court Payments Office, Rosenheim.

A form to be returned by 20 September 1984 was enclosed for

the purpose of consenting to this method of settlement which

would result in the termination of the proceedings without

further notice. No entry would be made in the criminal register.

Failure to agree would result in criminal proceedings being

brought (Anklage erhoben) against him without further notice.

No explicit mention was made of the way in which the proceedings

would be brought, namely the summary procedure whereby a penal

order is issued as opposed to being summoned to appear in court.

11. As the applicant did not return the consent form or pay the

fine he was issued with a penal order (Strafbefehl) by the

Rosenheim District Court (Amtsgericht) on 7 November 1984 in

accordance with a summary procedure (see paragraph 19 below).

He was sentenced to a fine of DM 40 per day for twenty-five days

for coercion and for the further offence of dangerous assault

(gefährliche Körperverletzung) which was not mentioned in the

letter of 9 August 1984.

When the postman found nobody at the applicant's home the

order was served in accordance with the relevant legal provisions

(see paragraph 20 below), by way of a notification in his

letter-box on 12 November 1984 to collect a letter deposited at

the Oberaudorf post office in his absence.

On the front of the notification form the recipient's

attention was drawn, in bold type, to the fact that the document

had been served on him with legal effect by virtue of its being

deposited at the post office for collection - regardless of

whether and when it actually came to his attention. On the back

of the form it was stated that the letter should be collected as

soon as possible and that failure to do so could have adverse

legal consequences since time-limits began to run from the time

of deposit at the post office.

12. Since no objection had been lodged by the applicant within

the one-week time-limit then prescribed by law and explicitly

mentioned in the penal order, it acquired legal force as the

final judgment in the matter on 20 November 1984.

13. An application for the reinstatement of the proceedings

against the penal order was submitted by the applicant's lawyer

on 26 November 1984 and received by the Rosenheim District Court

on 27 November 1984, more than two weeks after the date of

notification in his letter-box. Under German law reinstatement

may be granted when certain deadlines have been missed through

no fault of the person concerned. Such an application should,

however, have been submitted within one week of the cessation of

the impediment according to section 45 of the Code of Criminal

Procedure (see paragraph 19 below).

14. At the request of the public prosecutor's office the

Oberaudorf post office submitted a note dated 3 December 1984 to

the effect that the penal order had been collected by the

applicant's wife on 19 November 1984 and not on 20 November 1984.

This contradicted her affidavit of 23 November 1984 in which she

said that she had returned home on 20 November having been away

since 6 November. During her absence the applicant had stayed

at home and worked as usual but had no key to their letter-box.

15. On 6 December 1984 the applicant's request for reinstatement

was dismissed by the Rosenheim District Court and he was ordered

to pay the costs. It was held that the accused was not prevented

by any fault save his own from filing the objection in time

because he had received the penal order on 19 November 1984 as

shown by the information supplied by the post office and on that

day he could still have filed the objection within the

time-limit. Moreover, the request for reinstatement was filed

at the registry out of time (see paragraph 13 above).

16. On 14 December 1984 the applicant's wife swore a second

supplementary affidavit in which she confirmed that she had

collected the penal order at the Oberaudorf post office on

19 November, but said that she had not given it to her husband

until the following day because she had not wanted to irritate

him after his day at work.

17. The Traunstein Regional Court dismissed the applicant's

appeal (Beschwerde) on 24 January 1985 and ordered him to pay the

costs. In its judgment the court noted the discrepancies not

only between the applicant's wife's first affidavit and the

evidence from the Oberaudorf post office but also between her own

two affidavits of 23 November and 14 December. It concluded as

follows:

"There exists a suspicion that the applicant's wife swore

a false affidavit so that her husband would be granted

reinstatement in the [status quo ante] proceedings. The

conclusion one must arrive at, therefore, is that the local

court was right in dismissing the application for

reinstatement."

18. On 17 October 1985, due to its lack of prospects of success,

the Federal Constitutional Court (Bundesverfassungsgericht)

rejected the applicant's appeal against the refusal of

reinstatement. It held that, in principle, the Federal

Constitutional Court could not examine whether or not the

applicant had sufficiently substantiated his claim that he first

knew of the penal order on 20 November 1984. If, as was held in

the earlier decisions, the applicant learnt of the penal order

on 19 November 1984, he could still have taken immediate steps

to keep to the deadline. The judgment went on as follows:

"Even if the complainant, however, had no longer been able

to lodge an objection in time on 19 November 1984 he would

not have been prevented from keeping to the deadline

without there being some fault on his part. It is in

principle the responsibility of the addressee himself to

take sufficient care to ensure that documents to be served

can reach him. In this the complainant was clearly remiss.

Although he himself was not away from his place of

residence during his wife's absence, he did not bother

about the contents of his letter-box and did not show

appropriate concern to ensure that the letter-box could be

opened even though the key was not available. Thus if the

complainant was only able to learn of the penal order so

shortly before expiry of the objection period, with the

result that an objection could no longer be made in time,

this does not necessarily prompt the assumption that the

complainant missed the deadline for the objection through

no fault of his own.

Nor would such an assumption be called for, even if it were

true that the complainant's wife had only handed him the

penal order on 20 November 1984. If the addressee leaves

it to other persons to take receipt of his mail, then it

can be expected of him that he ensures, through appropriate

instructions or arrangements - and he must check that these

are kept to - or through other suitable measures, that any

post received is made known to him in good time and in its

entirety. In this, too, the complainant was clearly

remiss."

II. The relevant domestic law

19. Sections 407-410 of the Code of Criminal Procedure ("the

Code"), as applicable at the relevant time, provide for the

imposition of a penal order, without a trial, in cases concerning

minor offences. Once the case has been allocated to the

appropriate court, the public prosecutor may submit an

application for a penal order which must be accepted by the judge

if there are no grounds for refusing it, namely having a

different legal assessment of the case or wishing to impose a

different sentence.

The written penal order shall contain a reference to the

fact that the penal order should be final, binding and

enforceable if the accused fails to lodge a written objection at

the appropriate court or have such an objection taken down in

writing at the court office, at the relevant time, within one

week of service. If the objection is received within the

prescribed time-limit, trial proceedings are instituted. The

time-limit for lodging an objection to the penal order has since

been changed to two weeks by the Criminal Procedure Amendment Act

(Strafverfahrensänderungsgesetz) of 27 January 1987 which came

into force on 1 April 1987.

If, however, the accused is prevented from meeting the time-

limit through no fault of his own (ohne Verschulden verhindert)

an application to have the proceedings reinstated must be made

within one week of the cessation of the impediment according to

sections 44-45 of the Code.

20. The service of documents, pursuant to section 37 of the

Code, is governed by sections 181-182 of the Code of Civil

Procedure (Zivilprozessordnung). If a document cannot be

personally served, it may be deposited, inter alia, at the local

post office. In that case a written notification of deposit must

be delivered to the recipient's address in the manner customary

in the case of ordinary letters or, if this should be

inexpedient, affixed to the door of his home or handed to someone

in the neighbourhood to transmit to the addressee.

PROCEEDINGS BEFORE THE COMMISSION

21. Mr Hennings lodged his application with the Commission on

16 April 1986. He complained under Article 6 (art. 6) of the

Convention, taken in isolation and in conjunction with

Article 14 (art. 14+6), about the short time-limit for filing an

objection against the penal order and that it was not served on

him personally.

22. The Commission declared the application (no. 12129/86)

admissible on 4 September 1990. In its report of 30 May 1991

drawn up under Article 31 (art. 31), it expressed the opinion

that there had been no violation of Article 6 para. 1 (art. 6-1)

(nine votes to four) nor of Article 14 taken together with

Article 6 para. 1 (art. 14+6-1) (twelve votes to one). The full

text of its opinion and of the dissenting opinion contained in

the report is reproduced as an annex to this judgment*.

_______________

* Note by the Registrar: for practical reasons this annex will

appear only with the printed version of the judgment

(volume 251-A of Series A of the Publications of the Court), but

a copy of the Commission's report is available from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT

23. The Government in their memorial of 16 December 1991 invited

the Court to find "that the Federal Republic of Germany is not

in breach of its obligations under the Convention".

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)

24. The applicant complained that he had been denied access to

a court in breach of paragraphs 1, 3 (a), (b) and (c) of

Article 6 (art. 6-1, art. 6-3-a, art. 6-3-b, art. 6-3-c).

In particular, he alleged that the prosecuting authorities

failed to ensure that he was in actual receipt of the penal order

through personal service and that due to the shortness of the

time-limit for lodging an objection to it he was deprived of the

possibility of getting legal assistance in time.

The Commission considered the case under Article 6 para. 1

(art. 6-1) and found that there had been no breach. The

Government agreed.

25. The Court recalls that the guarantees contained in

paragraph 3 of Article 6 (art. 6-3) are constituent elements,

amongst others, of the general notion of a fair trial (see,

amongst many authorities, the Artner v. Austria judgment

of 28 August 1992, Series A no. 242-A, p. 10, para. 19). In the

circumstances of the case, whilst also having regard to those

guarantees, it is of the opinion that the complaint should be

examined under paragraph 1 (art. 6-1), which provides as follows:

" In the determination ... of any criminal charge against

him, everyone is entitled to a fair ... hearing ... by [a]

... tribunal established by law ..."

26. The Court, like the Commission and the Government, considers

that the applicant could reasonably have been expected to obtain

a key to his letter-box in order to have ready access to any mail

addressed to him, particularly since he must have foreseen that

proceedings would be brought against him as a result of his

failure to reply to the letter of 9 August 1984 from the public

prosecutor's office (see paragraph 10 above). The authorities

cannot be held responsible for barring his access to a court

because he failed to take the necessary steps to ensure receipt

of his mail and was thereby unable to comply with the requisite

time-limits laid down under German law.

Whilst the time-limit of one week for lodging an objection

following service of the penal order was short, especially where

a new offence had been alleged (see paragraph 11 above), it must

be borne in mind that the applicant still had the possibility of

seeking reinstatement of the proceedings. Such a request must

be granted if there has been no fault on the part of the person

concerned. However, Mr Hennings failed to lodge even this

request in time (see paragraphs 13-18 above).

27. In conclusion, it cannot be said that the applicant was

denied his right of access to a court. Accordingly, there has

been no violation of Article 6 para. 1 (art. 6-1) of the

Convention.

II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN TOGETHER WITH

ARTICLE 6 (art. 14+6)

28. Before the Commission the applicant also complained under

Article 14 taken in conjunction with Article 6 (art. 14+6) that

whereas the public prosecutor's office had three months to indict

him he only had seven days in which to file an objection to the

penal order.

He did not pursue this claim before the Court but he did

allege in broad terms that he was the victim of discrimination

because he did not have the same rights as those who had the

benefit of trial proceedings. However, the Court, even if it had

jurisdiction to do so, sees no reason to examine this claim since

it is subsumed in his general complaint that he was denied access

to court.

FOR THESE REASONS, THE COURT

1. Holds by eight votes to one that there has been no

violation of Article 6 para. 1 (art. 6-1);

2. Holds unanimously that it is not necessary to examine the

complaint under Article 14 taken together with Article 6

(art. 14+6).

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on

16 December 1992.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 53 para. 2 of the Rules of Court, the

dissenting opinion of Mr Walsh is annexed to this judgment.

Initialled: R.R.

Initialled: M.-A.E

DISSENTING OPINION OF JUDGE WALSH

1. By virtue of sections 407-410 of the Code of Criminal

Procedure the applicant was "convicted", without a trial, of two

criminal offences, namely coercion and dangerous assault. The

fact that the offences are classed as minor offences does not

alter the applicable principles of Article 6 (art. 6) of the

Convention. There was no public hearing or indeed any hearing,

at which evidence was given or at which it would have been

possible to cross examine witnesses prior to conviction.

Therefore before there was any offer of an opportunity to object

the applicant was adjudged to be guilty and that decision would

so remain unless set aside on the objection of the applicant.

2. It appears to me that such a procedure throws the burden on

the applicant to prove he is innocent which is a violation of the

presumption of innocence guaranteed by Article 6 (art. 6). More

fundamental however is that a conviction was recorded without

being preceded by a trial.

3. I am therefore of the opinion that there has been a breach

of Article 6 (art. 6) on two counts.