CASE OF JOHANSEN v. GERMANY
No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary
5. The applicant was born in 1970 and currently lives in London. 6. On 16 October 2008 the Frankfurt am Main District Court issued a penal order against the applicant. Having regard to the written submissions the applicant had made on the charges to the prosecution, the court found the applicant guilty of withholding and embezzlement of employee salaries and sentenced her to a fine of 100 daily rates of EUR 50. 7. According to the record of service, a form containing several options as to the way in which court mail was served, which was issued by a courier and returned to the District Court, the courier had attempted to hand over the penal order to the applicant at her residence on 7 November 2008 at 2.10 p.m. As this had not been possible, the courier had served the penal order on the applicant by placing it in the mailbox appurtenant to her residence (Article 180 of the Code of Civil Procedure, see paragraph 29 below). 8. On 27 December 2008 the applicant filed an objection against the penal order with the Frankfurt am Main District Court and applied for the reinstatement of the proceedings. She argued that her objection was not time-barred as the penal order had not been served on her on 7 November 2008. She had only learnt about the existence of a penal order issued against her on 20 December 2008 when she had found in her mailbox a bill of the court cashier requesting her to pay the fine imposed in the penal order. On calling the court cashier, she had been informed of the order’s alleged service on 7 November 2008. 9. The applicant claimed that she was sure that no penal order had been served on her on 7 November 2008. She stated that her counsel, Mr N. Dotterweich, and her husband had been at a court hearing at the Hanau District Court on 7 November 2008 and had therefore come to visit her at her house on that day. In the afternoon she had bade farewell to her counsel. When accompanying him to the front gate, she had checked her mailbox for her daily mail in his presence. She had found neither a penal order nor a notice that a penal order had been deposited in another place. 10. On 6 February 2009 the applicant’s counsel supplemented the applicant’s submissions. He claimed that he, the applicant, the applicant’s mother who was living in the same house as the applicant and the applicant’s husband who lived in London had all been at the applicant’s house at the time the penal order had allegedly been served. Counsel and the applicant had returned to the applicant’s residence at around 12.15 p.m. after having attended a hearing at the Hanau District Court. The applicant’s husband had arrived shortly before them and had been waiting for them, together with the applicant’s mother. 11. The applicant’s counsel explained that no one had rung the doorbell to hand over the penal order while they had been at the applicant’s residence. They would have noticed the doorbell ringing, as the applicant had dogs, which were outside and would have barked. At around 3.30 p.m. they had all left the house. At that moment the applicant had taken the mail out of her mailbox. She had immediately checked the contents. There had been no official letter from a court. Such a letter would have stood out and would therefore have been noticed by the persons present, as official court letters came in bright yellow envelopes. The applicant’s husband, counsel and the common daughter of counsel and the applicant had then left. 12. The applicant’s counsel further submitted that the private postal service company J., which had been in charge of the delivery of official court mail for the Frankfurt am Main District Court, was known for its unreliability. In December 2008, hence shortly after the alleged delivery, the company had had to register as insolvent. 13. The applicant’s counsel added to his submissions the affirmations in lieu of an oath of the applicant’s mother, the applicant’s husband and himself confirming his submissions. The applicant’s mother stated, in particular, that she had paid special attention when her daughter took the mail out of the mailbox as, owing to the fact that they lived in the same house, part of her mail was sometimes put into her daughter’s mailbox. The applicant’s husband declared that when the applicant had taken out the mail he had paid special attention because he had formerly also lived at that address and sometimes mail addressed to him was still sent there. 14. On 9 April 2009 the Frankfurt am Main District Court rejected the applicant’s objection against the penal order as inadmissible and dismissed her application for reinstatement of the proceedings. The court considered it proved that the penal order had been served on the applicant on 7 November 2008 at 2.10 p.m. as was certified by the record of service. The applicant had therefore failed to file her objection, which was received by the court on 27 December 2008, within the two-week time-limit and the penal order had hence become final (see paragraph 27 below). 15. The District Court was also of the view that there was no reason to grant the applicant reinstatement of the proceedings, as it was not apparent why the applicant had been prevented, through no fault of her own, from submitting her objection against the penal order within the two-week timelimit after the delivery of 7 November 2008. 16. The court found that the record of service had probative value for the fact that the penal order had been put into the applicant’s mailbox by the courier on 7 November 2008 (Article 418 of the Code of Civil Procedure, see paragraph 29 below). In accordance with the settled case-law, this could only be disproved if facts were presented that convinced the court that there was no possibility that the facts certified by the record of service were correct. The applicant had not been able to furnish the court with such counter-evidence. 17. In its assessment of evidence, the Frankfurt am Main District Court had regard to the written statement of the courier who had delivered the applicant’s penal order, whom it had had interviewed by the police as a witness. The courier had explained that she had been registered with J. company to help her husband with the delivery of the court mail since October 2008. When asked by the police to describe how she had delivered official court letters she had stated that official court letters had always been in yellow envelopes. She confirmed that she always rang the doorbells of the addressees. If they did not respond she would deposit a “letter of notification” (Benachrichtigungsschreiben) in the mailbox. She confirmed that the signature on the record of service concerning the applicant was hers, the date and the time had been filled in by her husband. She did not specially remember either the service on 7 November 2008 or the applicant’s house. When cautioned that she did not have to respond to questions if there was a risk that she might incriminate herself, she had confirmed that she was sure she had served the mail correctly or left a “notice” (Benachrichtigung). 18. The District Court concluded that the courier had testified that she had always served the official court mail in accordance with the rules. Moreover, when asked by the police, the Frankfurt am Main branch of J. company had confirmed that no irregularities were known to the company with regard to the service of the court mail. The courier had had no incentive to embezzle the applicant’s mail. 19. The court considered, in contrast, that the story described by the applicant to disprove the service of the penal order seemed fabricated. It took into consideration that the declarations in lieu of an oath all came from persons who were close to the applicant and who had a considerable interest in the outcome of the criminal proceedings against her. It further noted that the applicant had not mentioned all the persons who had allegedly been present when she checked her mail in her first submission of 27 December 2008. Moreover, it was not in accordance with general experience in life for someone to check his mail in front of all his family members. As it had been proved by the record of service that the penal order had been put into the applicant’s mailbox, potential shortcomings by the courier’s failure to ring the doorbell first – which according to the applicant would have resulted in her dogs barking, which they allegedly had not done at the relevant time – would, in any event, have been remedied by the actual service. 20. On 22 April 2009 the applicant, represented by her lawyer, appealed against the decision of the Frankfurt am Main District Court. She claimed, in particular, that according to articles in a national newspaper, the unreliability of the postal service company J. had been revealed, inter alia, by the Oldenburg Court of Appeal and the Kiel Regional Court and that an Aachen local newspaper had reported that court mail had been found in a refuse shed. 21. The applicant further pointed out that the courier’s witness statement contradicted the record of service. The courier had described the service of the penal order by way of putting a written notice into the addressee’s mailbox, which constituted a substituted service in accordance with Article 181 of the Code of Civil Procedure (see paragraph 29 below). In contrast, the record of service certified service by way of placing the penal order itself in the applicant’s mailbox, which constituted substituted service in accordance with Article 180 of the Code of Civil Procedure (see paragraph 29 below). 22. On 10 June 2009 the Frankfurt am Main Regional Court dismissed the applicant’s appeal against the decision of the Frankfurt am Main District Court. The court, essentially endorsing the reasons given by the District Court, confirmed the District Court’s finding that the penal order had effectively been served on the applicant on 7 November when placed in the applicant’s mailbox (Article 37 of the Code of Criminal Procedure, read in conjunction with Article 180 of the Code of Civil Procedure, see paragraphs 28-29 below). 23. The Regional Court considered that the applicant had not furnished the court with sufficient counter-evidence. The court did not have to decide whether J. company had been reliable in all cases. In the case before it, the courier and her husband had had no reason to commit post embezzlement and forgery of documents. The affirmations in lieu of oaths could not prove that the penal order had not been in the mailbox on 7 November 2008. The affirming persons had not testified that they had constantly paid special attention to a possible ringing of the doorbell. Furthermore, it could not be ruled out that the applicant had been inattentive when going through the mail because of the presence of guests. It was likely that the penal order had been hidden among other mail and had probably inadvertently been thrown away or simply ignored. 24. On 14 August 2009 the applicant lodged a constitutional complaint with the Federal Constitutional Court in which she claimed that her constitutional right to be heard and her right to a fair trial had been breached in the criminal proceedings against her. 25. On 22 September 2009 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint without giving reasons (file no. 2 BvR 1891/09). The decision was served on the applicant’s counsel on 30 September 2009.