HOMANN v. GERMANY
Inadmissible
Peer Lorenzen
The applicant, Mr Jürgen-Peter Homann, is a German national who was born in 1945 and is currently detained in Diez. On 30 April 1985 the Koblenz Regional Court convicted the applicant of two counts of rape and sentenced him to twelve years’ imprisonment. Furthermore, the court ordered the applicant’s placement in preventive detention pursuant to section 66 of the Criminal Code (see ‘Relevant domestic law’, below). Since 25 August 1999 the applicant, having served his full prison sentence, has been remanded in preventive detention. In the course of proceedings for review of whether the further execution of the applicant’s placement in preventive detention should be suspended on probation, the Arnsberg Regional Court summoned the applicant to a hearing on 22 May 2002. By fax of 21 May 2002 the applicant lodged a motion with the Arnsberg Regional Court to revoke the designation of his court-appointed defence counsel. He argued that following the counsel’s visit in prison on that day, there was no longer a relationship of trust between him and his counsel. He informed the court that he would not appear at the hearing scheduled for 22 May 2002 as no proper defence had been set up. He further objected to the report submitted by expert K. on the risk of his being recidivist as the expert had not been able to consult the complete case-files. On 22 May 2002 the president of the Arnsberg Regional Court dismissed the applicant’s request to revoke the appointment of his counsel as illfounded. He argued that under section 143 of the Code of Criminal Procedure (CCP), it was possible to revoke the designation of an officially appointed defence counsel if the mutual trust between the defendant and the lawyer was seriously disturbed. However, the applicant failed to substantiate this since he had not given any reasons for his allegation that there was no longer a relationship of trust between him and his counsel. On 22 May 2002 the Arnsberg Regional Court refused to suspend the applicant’s placement in detention on probation following a hearing on the same day. At the hearing the applicant’s court-appointed defence counsel and the expert were present. As announced in his fax to the court, the applicant himself did not attend the hearing. Having regard to the report submitted by expert K., the Regional Court found that it could not be assumed that the applicant would not commit further offences if released from prison. It stated that the expert had convincingly argued that the applicant, as shown by his offence, was still dangerous for the public. Even though he had committed his last offence eighteen years ago, there were no signs that the applicant, who kept claiming to have been wrongfully convicted, was no longer likely to be recidivist. On 28 May 2002 the applicant received a copy of the decisions taken by the Arnsberg Regional Court and its president by post. The Regional Court informed him that the decisions had been formally served on his defence counsel. Other than the letter to his counsel served on the same day, the letter to the applicant did not contain instructions about his available legal remedies (Rechtsmittelbelehrung). By submissions dated 10 and 11 June 2002, which reached the Hamm Court of Appeal on 14 June 2002, the applicant lodged an appeal against the aforementioned decisions of the Arnsberg Regional Court and its president. On 26 September 2002 the Hamm Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision not to suspend his placement in preventive detention on probation as inadmissible. The court found that the applicant had not lodged his immediate appeal (sofortige Beschwerde) with the Regional Court as prescribed by section 306 § 1 CCP (see ‘Relevant domestic law’, below), but directly with the Court of Appeal. The Court of Appeal had not been obliged to forward the appeal to the Regional Court, as it had already been lodged out of time when received by the Court of Appeal. Pursuant to sections 311 § 2 and 35 § 2 CCP (see ‘Relevant domestic law’, below), the applicant had to lodge his immediate appeal within one week after the Regional Court’s decision, including instructions about the available legal remedies, had been served on his lawyer on 28 May 2002. The applicant had, however, failed to lodge his appeal until 4 June 2002 at the latest with the Arnsberg Regional Court. The Hamm Court of Appeal further dismissed the applicant’s appeal against the refusal of the president of the Regional Court to revoke the designation of his court-appointed defence counsel as ill-founded. Endorsing the reasons given by the Regional Court, it argued that the applicant failed to substantiate that there were circumstances warranting the conclusion that the relationship of trust between him and his courtappointed lawyer was considerably and irrevocably disturbed to an extent which rendered the conduct of a proper defence impossible. In particular, it had been objectively justified for the defence counsel to refuse to lodge motions aimed at challenging the applicant’s conviction in 1985. The lawfulness of this conviction was not at issue in the proceedings concerning the necessity of the applicant’s continued placement in preventive detention. On 13 October 2002 the applicant filed a remonstrance (Gegenvorstellung) against the decision of the Hamm Court of Appeal dated 26 September 2002 dismissing his immediate appeal against the Regional Court’s decision not to suspend his placement in preventive detention on probation. He complained that the Regional Court’s letter of 28 May 2002 to him had not contained instructions about the available legal remedies. He had not been in contact with his officially appointed counsel after 21 May 2002. He further argued that the Regional Court had been obliged to give him an opportunity to supplement the reasons why there was no longer a relationship of trust with his lawyer. On 29 October 2002 the Hamm Court of Appeal, interpreting the applicant’s remonstrance as a request for reinstatement of the proceedings (Wiedereinsetzung in den vorigen Stand), dismissed this request. It found that the applicant had not substantiated that he had been prevented from observing the one-week time-limit for lodging an immediate appeal without fault of his own (section 44 CCP, see ‘Relevant domestic law’, below). Instructions about the available legal remedies were and had to be given solely to the applicant’s lawyer, on whom the Regional Court’s decision had been formally served (sections 35a and 145a § 3 CCP, see ‘Relevant domestic law’, below). There was no obligation under the Code of Criminal Procedure to enclose such instructions also in the letter sent to the applicant (section 145a § 3 CCP, see ‘Relevant domestic law’, below). In that letter, the Court of Appeal had informed the applicant of the contents of the Regional Court’s decision and of the fact that it had been served on his counsel. He should therefore have contacted his lawyer without undue delay in order to be informed about the further course of the proceedings or to mandate him to lodge an appeal. On 14 November 2002 the Hamm Court of Appeal rejected the applicant’s further remonstrance against its decision of 29 October 2002. On 8 April and 19 August 2003 the Hamm Court of Appeal dismissed the applicant’s further requests for reinstatement of the proceedings. On 6 May 2003, 16 October 2003 and 11 November 2003 the Hamm Court of Appeal rejected the applicant’s further remonstrances. On 10 December 2003 the applicant lodged a complaint with the Federal Constitutional Court against the aforementioned decisions taken by the Regional Court and the Court of Appeal. He argued, in particular, that the failure to grant him access to the Court of Appeal in order to complain about the refusal of the Arnsberg Regional Court to suspend his placement in preventive detention on probation had violated his right to a fair trial as guaranteed by the Basic Law. The Regional Court had notably failed to inform him about the available legal remedies against its decision of 22 May 2002. Moreover, his right to a fair hearing had been breached in that the Regional Court had not revoked the designation of his court-appointed counsel without giving him an opportunity further to substantiate why there was no longer a relationship of trust between him and his counsel. On 11 February 2004 the Federal Constitutional Court, without giving reasons for its decision, refused to admit the applicant’s constitutional complaint. Decisions which are not taken in the presence of the person concerned shall be notified by service thereof (section 35 § 2 of the Code of Criminal Procedure – CCP). The court-appointed defence counsel is considered authorized to accept service of documents on behalf of the defendant (section 145a § 1 CCP). If a decision is served on counsel for the defence, the defendant shall be informed thereof; at the same time he shall be provided informally with a copy of the decision (section 145a § 3 CCP). Upon notification of a decision the appeal against which is subject to a time-limit, the person concerned shall be given instructions about the options for contesting the decision and the prescribed time-limits and forms (section 35a CCP). An appeal against a decision (Beschwerde) shall be lodged with the court which took the contested decision, either orally to be recorded by the court’s registry or in writing (section 306 § 1 CCP). An immediate appeal (sofortige Beschwerde) shall be lodged within one week; the time-limit shall start running upon notification (section 35 CCP) of the decision (section 311 § 2 CCP). Section 44 provides that if a person was prevented from observing a time-limit without fault of his own, he shall be granted reinstatement of the proceedings (Wiedereinsetzung in den vorigen Stand). Failure to observe the time-limit for lodging an appeal shall be considered as not due to his fault if the instructions pursuant to section 35a CCP have not been given. The sentencing court may, at the time of the offender’s conviction, order his preventive detention in addition to his prison sentence if the offender is sentenced for an intentional offence to at least two years’ imprisonment, has previously been convicted and detained (for certain periods fixed by law) and proved dangerous for the public (section 66 of the Criminal Code). The court dealing with the execution of sentences may review at any time whether the further execution of the placement of a convicted person in preventive detention should be suspended on probation. It is obliged to do so every two years (section 67e of the Criminal Code).