KOCH v. GERMANY
Inadmissible
Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
The applicant, Mr Ralf Koch, is a German national who was born in 1968 and lives in Nideggen in Germany. In January 1998 police officers searched the applicant’s premises in order to seize evidence relating to an offence of unlawful assumption of authority allegedly committed by the applicant in December 1997. In January 1999 the Aachen Public Prosecutor’s Office preferred an indictment against the applicant with the Aachen District Court (Amtsgericht). In July 1999 police officers once again searched the applicant’s premises in order to seize evidence relating to three counts of falsification of documents allegedly committed by the applicant in December 1998, April 1999 and June 1999. In November 2001 the Aachen Public Prosecutor’s Office preferred an indictment against the applicant with the Aachen District Court. On 14 February 2003 the Aachen District Court, having joined to the proceedings three further indictments relating to criminal offences allegedly committed by the applicant in April 1999, November 2000 and April, May and June 2001, held a hearing during which the applicant was represented by the court-appointed counsel P. Following the hearing, the Aachen District Court convicted the applicant of three counts of falsification of documents, one count of unlawful assumption of authority in conjunction with attempted coercion, falsification of documents, bodily injury and falsely casting suspicion on an innocent person and four counts of insult and sentenced him to one year and eight months’ imprisonment, suspended on probation. The District Court considered as mitigating factors that the applicant had made a confession and that some of the offences had been committed many years ago. Parallel to these proceedings, public prosecution instituted separate proceedings against the applicant before the Düren District Court for falsification of documents allegedly committed by the applicant in 2002. On 14 February 2003 the Düren District Court appointed the lawyer W. to represent the applicant during the proceedings before that court. As W. was unable to attend the hearing scheduled for 18 February 2003, the District Court, on that same date, absolved her from her duties. On 18 February 2003 the District Court convicted the applicant, who was not represented by counsel, of falsification of documents and sentenced him to a fine of 2,000 euros. On 12 May 2003 the Aachen Regional Court (Landgericht), in joint proceedings, rejected the applicant’s appeal against the judgments of 14 and 18 February 2003 as inadmissible on the ground that the applicant had failed to attend the court hearing held on 12 May 2003. On 16 May 2003 the applicant applied for the reinstatement of the proceedings. He alleged that he had been unable to attend the court hearing as he had been admitted to intensive care from 11 to 13 May 2003 due to an emergency. In support of his allegations, he named his brother as a witness. On 23 June 2003 the Aachen Regional Court rejected the applicant’s request. It noted that the applicant had failed to submit sufficient information as to the nature of his illness, the name of the treating practitioner or the hospital he had been admitted to, nor had he submitted sufficient evidence supporting his allegations. On 30 June 2003 the applicant lodged an appeal. In support of his allegations, he submitted a letter by the Aachen University hospital dated 13 May 2003. According to the content of that letter, the applicant had been admitted to intensive surveillance after having complained about having suffered an electric shock while blow-drying his hair. The medical examination did not disclose any abnormalities. On 5 September 2003 the Cologne Court of Appeal rejected the applicant’s appeal. That court considered that the applicant had failed to establish that he had been hindered to attend the court hearing through no fault of his own. The Court of Appeal considered that the hospital letter submitted by the applicant was exclusively based on the applicant’s own statement on the alleged electric shock incident and that the medical examination had not disclosed any abnormalities. On 16 May 2003 the applicant lodged an appeal on points of law against the Regional Court’s judgment of 12 May 2003. On 30 September 2003 the Cologne Court of Appeal (Oberlandesgericht) rejected the applicant’s appeal as inadmissible on the ground that the applicant had failed to submit the grounds for his appeal within the statutory time-limit of one month. This decision was served on the applicant on 8 October 2003. On 9 October 2003 the applicant requested to be reinstated in the proceedings. He alleged that the court appointed counsel P. had promised him during a telephone conversation that he would submit the reasons for the appeal on points of law in due time. As means of evidence, the applicant submitted an affidavit given by his brother. The applicant further requested the court to withdraw the court-appointed counsel P. and to appoint new counsel to submit the reasons for his appeal on points of law. On 4 November 2003 the Court of Appeal informed the applicant that the case-file had been transferred to the Regional Court to rule on his request to appoint fresh counsel. On 26 November 2003 the Aachen Regional Court rejected the applicant’s request to appoint fresh counsel on the ground that the applicant’s appeal on points of law lacked prospect of success. On 8 December 2003 the applicant, represented by counsel W., requested the Court of Appeal to grant him a fair hearing and to re-open the appeal proceedings. On 13 January 2004 the Cologne Court of Appeal rejected the applicant’s request to have the proceedings reinstated as being inadmissible. Having regard to the differing submissions made by counsel P., the Court of Appeal considered that the applicant had failed sufficiently to establish that P. had promised him that he would submit reasons for his appeal. In any event, the applicant’s request was inadmissible as the applicant had failed to submit the grounds for his appeal, either through counsel or personally at the court’s registry, within the time-limit of one week set down in section 45 of the Code of Criminal Procedure (see relevant domestic law, below). The Cologne Court of Appeal further rejected the applicant’s request to re-open the proceedings on the ground that the applicant’s right to a fair hearing had not been violated. On 26 February 2004 the applicant lodged a constitutional complaint in which he complained about the conduct and the length of the proceedings before the criminal courts. On 21 May 2004 the Federal Constitutional Court, sitting as a panel of three judges, refused to accept his complaint for adjudication. Article 2 § 1 of the German Basic Law in conjunction with the principle of the Rule of Law guarantees the right to expeditious proceedings. According to the settled case-law of the Federal Constitutional Court, the courts and the prosecuting authorities are called upon to draw the consequences of the length of proceedings at any stage of the proceedings. Their possibilities include inter alia the discontinuation of the proceedings pursuant to sections 153 and 153a of the Code of Criminal Procedure, the limitation of the proceedings according to sections 154 and 154a of the Code of Criminal Procedure or a reduction of the sentence (see, among others, the decision of 24 December 1983 (no. 2 BvR 121/83); the decision of 19 April 1993 (no. 2 BvR 1487/90); the decision of 21 January 2004, no. 2 BvR 1471/03, Reports of Chamber Decisions (BVerfGK) no. 2, pp. 239 et seq.; the decision of 21 June 2006, nos. 2 BvR 750/06, 752/06 and 761/06). Section 341 [form and time limit] “1. The appeal on points of law shall be filed with the court whose judgment is being contested either orally to be recorded by the registry or in writing within one week after pronouncement of judgment. 2. If pronouncement of judgment did not take place in the defendant’s presence, the time limit in respect of the defendant shall begin to run upon service of the judgment.” Section 345 [time limit for stating grounds] “1. The motions together with the grounds therefor shall be submitted to the court whose judgment is being contested no later than one month after expiry of the time limit for seeking the appellate remedy. If the judgment has not been served by then, the time limit shall commence upon service thereof. 2. The defendant may only do this in the form of a notice signed by defence counsel, or orally to be recorded by the court registry.” Section 45 [request for reinstatement of the proceedings] “1. The request for reinstatement of the proceedings shall be filed...within one week after cessation of the impediment (...). 2. The facts justifying the request shall be substantiated at the time the request is filed or during the proceedings on the request. The omitted act shall be undertaken within the time limit for filing the request (...).”