CASE OF DRIDI v. GERMANY
Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence in person);Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-b - Preparation of defence)
André Potocki;Angelika Nußberger;Erik Møse;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1982 and lives in Cadiz. 6. On 2 March 2009 the Hamburg District Court, after having served a summons on the applicant to appear at the address that he had at that time in Hamburg, convicted the applicant of assault and sentenced him to forty dayfines of 25 euros (EUR) each and allowed him to pay his fine in instalments in the light of his economic situation. The District Court had, at the applicant’s request, authorised Mr Arif – at that time still a law student – to act as defence counsel under Article 138 § 2 of the Code of Criminal Procedure (see paragraph 19 below). 7. The applicant and the public prosecutor lodged appeals. The prosecutor’s appeal was directed merely against the sentencing. Thereafter, the applicant moved to Spain to work as a chef in a hotel and communicated his new address to the court. 8. On 24 April 2009 the Hamburg Regional Court withdrew the authorisation of Mr Arif to act as defence counsel, while at the same time rejecting the application lodged by Mr Arif for the applicant to be released from the obligation to appear in person at the appeal hearing. This decision was served on the applicant in Spain. 9. Also on 24 April 2009 the Regional Court fixed the date for the oral hearing of the applicant’s appeal to 9.10 a.m. on 13 May 2009. It decided to serve the summons on the applicant via public notification because the applicant had moved abroad. The summons was displayed on the court’s noticeboard from 27 April until 12 May 2009. 10. On 12 May 2009 Mr Arif learned by telephone of the Court of Appeal’s decision of that same day to overturn the Regional Court’s decision in respect of his authorisation to act as counsel for the applicant and of the appeal hearing having been scheduled for the next morning. He applied by fax for the hearing to be adjourned, citing the fact that he was going to be out of town the next day. He furthermore asked that documents from the case file – in particular the public prosecutor’s appeal – be sent to him. The presiding judge ordered that a copy of that appeal and of the decision to serve the summons of the applicant by public notification be sent to the applicant’s lawyer. This proved impossible, as the lawyer’s fax machine had no receiving function. The lawyer was offered access to the file at the courthouse the following day at 8 a.m. (that is to say immediately before the hearing), which he declined, stating that he would be out of town. 11. On 13 May 2009 the Regional Court refused, in a separate decision, an application lodged by the applicant’s lawyer for the appeal hearing to be adjourned. It stated that the lawyer had waived his right to be summoned within the respective time-limit because he had known about the date of the appeal hearing (as evidenced by his fax of the previous day), and that the properly summoned applicant had failed to appear without providing any reason. Simultaneously, the Regional Court dismissed the applicant’s appeal without an assessment of the merits, in accordance with Article 329 of the Code of Criminal Procedure (see paragraph 19 below), because he had not appeared at the appeal hearing (without any sufficient excuse, and despite having been summoned), nor had he been represented by a lawyer in a permissible manner. 12. On 10 March 2010 the Regional Court dismissed the applicant’s application for the restoration of the status quo ante. It found that the requirements for the serving of a summons by means of public notification, as set out in Article 40 §§ 2 and 3 of the Code of Criminal Procedure (see paragraph 19 below), had been met. The applicant’s lawyer had waived his right to be summoned, and his application for an adjournment had not relied on the failure to comply with the time-limit for serving a summons but had rather invoked scheduling problems, which he had not described in greater detail. 13. On 15 April 2010 the Court of Appeal upheld that decision. It considered that the applicant had been properly summoned to the appeal hearing because the requirements for service by public notification, as set out in Article 40 § 2 of the Code of Criminal Procedure, had been met. The summons to attend the hearing before the District Court had been served on the applicant’s previous address in Germany and he had lodged the appeal in question. As regards his interest in having the District Court’s judgment reviewed, it had been his responsibility to ensure that it was possible for the summons to appear at the appeal hearing to be served in Germany. As a result of his move to Spain it had not been possible to serve the summons at his previous address in Hamburg. It had thus been acceptable for the summons to be served by public notification. There had been neither an obligation to undertake an attempt to serve the summons at the applicant’s new address abroad prior to serving it via public notification nor one to notify him at that address that the summons had been served by public notification. The applicant had also not specifically authorised (under the first sentence of Article 145a § 2 of the Code of Criminal Procedure) his lawyer to receive summonses (see paragraph 19 below). Moreover, the applicant had not convincingly shown that he had been prevented through no fault of his own from appearing at the appeal hearing, as required by Article 44 § 1 of the Code of Criminal Procedure (see paragraph 19 below), because the applicant’s lawyer had not provided an affidavit to support his claim that he had advised the applicant, on 12 May 2009, that the latter did not need to attend the hearing because he had not been summoned. As his appearance in person had been ordered (see paragraph 8 above), it had not been possible to carry out the appeal hearing in his absence. 14. On 16 July 2010 the Court of Appeal rejected an appeal on points of law lodged by the applicant against the Regional Court’s judgment of 13 May 2009 as ill-founded, finding that the review of the Regional Court’s judgment had not revealed any legal errors that had been detrimental to the applicant. 15. On 16 November 2010 the Federal Constitutional Court declined to consider a constitutional complaint lodged by the applicant, without providing reasons (no. 2 BvR 2147/10). The decision was served on the applicant’s lawyer on 10 December 2010. 16. Following communication of the case and unsuccessful friendly settlement negotiations, on 8 July 2016 the Government informed the Court of their intention to resolve the issue raised by the application. They produced a unilateral declaration, in which they acknowledged violations of Article 6 §§ 1 and/or 3 (c), as well as Article 6 § 3 (b) and (c) of the Convention and offered to pay the applicant a sum to cover any pecuniary and non-pecuniary damage together with any costs and expenses. The Government requested that the Court strike out the application in accordance with Article 37 § 1 of the Convention. 17. By a letter to the Court of 30 August 2016 the applicant indicated that he was not satisfied with the terms of the unilateral declaration. The aim he pursued with the present application was a reopening of the criminal proceedings against him and a subsequent acquittal. He argued that, under domestic law, such a reopening could not be achieved if the Court struck the case out of its list, but required a judgment finding a violation. Furthermore, the compensation offered was insufficient. 18. By a submission of 14 October 2016 the Government confirmed that there was – and in fact, there still is – no case-law of the domestic courts regarding whether Article 359 no. 6 of the Code of Criminal Procedure, which provides for the reopening of criminal proceedings following a judgment of the Court finding a violation (see paragraph 19 below), also applies to violations acknowledged by the Government by way of a unilateral declaration. This question was for the domestic courts to assess. They acknowledged that the provision had, in practice, been construed narrowly.