CASE OF MARC BRAUER v. GERMANY
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;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev
5. The applicant was born in 1978 and lives in Rheine. 6. On 26 June 2012 the applicant was arrested on the spot for having damaged with a hammer a number of vehicles parked in the Bocholt courthouse’s car park, and resisting a court’s clerk. As a preliminary measure he was confined to a psychiatric hospital. The court appointed defence counsel to the applicant, who had a previous history of psychiatric treatment going back as far as 1999. 7. On Tuesday 18 December 2012, the Münster Regional Court delivered its judgment and ordered the applicant’s confinement to a psychiatric hospital. It held that the applicant could not be held criminally responsible and was mentally ill. According to the court’s psychiatric expert, he was psychotic and aggressive, did not show any awareness of his illness and it was likely that he would commit further, even more serious crimes. 8. When the judgment was delivered in the presence of the applicant, his courtappointed defence counsel and the applicant’s custodian (gesetzlicher Betreuer), the applicant became agitated. He told the courtappointed lawyer that he wished for a change in representation and declared that he wanted to appeal against the decision himself. He was informed that this was not possible on the spot. The presiding judge instructed him about the time and form for lodging an appeal on points of law. He was then returned to the forensic hospital where, when in contact with others, he showed no more signs of agitation. 9. On Friday 21 December 2012 the applicant received a letter from the courtappointed lawyer, dated 19 December 2012, who advised him as follows: “... You already announced immediately after the hearing that you wanted to appeal against the court’s decision and also to mandate new defence counsel. We respect your wish for new counsel and hereby terminate the mandate. Regarding the remedy you wished for, we give the following advice: You may appeal on points of law against the decision of the Münster Regional Court (Bocholt Chamber) within one week after the judgment was delivered, thus until 27 December 2012 at the latest. Appeal on points of law may be lodged either with the record of the registry or in writing. Since you are not at liberty, the special provision of Article 299 of the CCP applies to you. This means that you can make statements relating to appellate remedies to the record of the registry of the District Court in whose district the institution is located. Thus, the Rheine District Court would be competent. According to Article 299 § 2 of the CCP, in order to meet the time-limit it suffices if the record is taken within the time-limit. In your own interest you should take care that the appeal is lodged in time. For the sake of completeness we refer to Article 345 of the CCP which prescribes that the specific grounds of the appeal shall be submitted to the court whose judgment is being contested no later than one month after expiry of the timelimit for seeking the appellate remedy. If the judgment has not been served by the expiry of that timelimit, the timelimit shall start to run upon the service thereof. In your case this may only be done in the form of a notice signed by defence counsel or by an attorney, or to be recorded by the court registry.” 10. Still, on 21 December 2012 the applicant typed and signed an appeal letter to the Rheine District Court and asked the clinic’s staff to post it. This was done on the following day (Saturday 22 December). 11. On Friday 28 December 2012 the applicant’s appeal letter reached the Rheine District Court, and was forwarded to the Münster Regional Court where it was received on 3 January 2013. 12. On 8 January 2013 the Regional Court informed the applicant that his appeal was belated. It underlined that the applicant had been instructed after the judgment’s delivery that an appeal could only be recorded by the registry of the District Court but could not be lodged in writing. 13. On 14 January 2013 the courtappointed lawyer, who had resumed his activity for the applicant, requested a reinstatement of the proceedings in accordance with Article 44 of the Code of Criminal Procedure (Wiedereinsetzung in den vorherigen Stand - see paragraph 19 below) and lodged an appeal on points of law. He explained that the applicant had misunderstood his counsel’s instruction on how to lodge an appeal. The applicant had believed that he was able to choose whether he wanted to lodge the appeal in writing or have it recorded by the registry either at the Rheine District Court or the Münster Regional Court. He could also have expected the appeal, posted on 22 December, to reach the Rheine District Court by 27 December 2012. 14. On 11 March 2013 the Federal Prosecutor General observed, inter alia, that: “He [defence counsel] referred to Article 299 of the Code of Criminal Procedure by using wording which was not per se wrong but potentially misleading because it could be understood that the appeal on points of law might be lodged either (by the applicant himself) with the record of the Rheine District Court’s registry or in writing with the same court.” However, according to the Federal Prosecutor General, the oral instruction on the day of the hearing was sufficient. 15. On 9 April 2013 the court-appointed lawyer submitted that: “... already at the time of trial the applicant was confined to a psychiatric clinic because of his mental illness. It may be that the oral instructions on the right to appeal given after the delivery of the judgment were correct and complete. However, when judgment was passed which ordered his confinement to a psychiatric hospital, the applicant was not in his right mind. Communication between the applicant and his defence counsel was impossible. The applicant was obviously in an exceptional mental state. In such a situation, taking into account the applicant’s psychiatric illness, it must be assumed that he had not understood the oral instructions on the right to appeal which were given immediately after the delivery of the judgment.” 16. On 24 April 2013 the Federal Court of Justice rejected the applicant’s request for reinstatement and consequently dismissed his appeal on points of law as inadmissible because it had been lodged out of time. It held that it was not necessary to examine whether, with regard to the Christmas holidays, the applicant should have expected his letter to be delivered only on 28 December 2012. Rather, it found decisive that the applicant had been expressly instructed on the day of the judgment’s delivery that an appeal could only be lodged with the Rheine District Court to the record of the registry, but not in writing. An accused who misunderstood the oral instruction and therefore lodged an appeal out of time was himself responsible for this. The Federal Court of Justice distinguished the applicant’s case from caselaw which made exceptions for a foreigner who was not defended by counsel. Moreover, the applicant’s defence counsel had given him instructions on the form and timelimit for an appeal. According to the Federal Court of Justice, the content of this letter was not misleading but reflected correctly the applicable law. There was nothing to show that the applicant might not have understood the oral instructions by the presiding judge for mental health reasons. He misunderstood the subsequent written instructions of his defence counsel in the same way. 17. The applicant filed a constitutional complaint to the Federal Constitutional Court. He stated, inter alia, that another lawyer had advised him that his courtappointed defence counsel had been under an obligation to file the appeal on points of law. 18. On 29 June 2013 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint for adjudication, without providing reasons (no. 2 BvR 1243/13).