EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 12129/86
Hans-Dieter HENNINGS
against
THE FEDERAL REPUBLIC OF GERMANY
REPORT OF THE COMMISSION
(adopted on 30 May 1991)
TABLE OF CONTENTS
PAGE
I. INTRODUCTION
(paras. 1 - 17) ........................................ 1
A. The application
(paras. 2 - 4) ................................. 1
B. The proceedings
(paras. 5 - 13) ................................ 1
C. The present Report
(paras. 14 - 17) ............................... 2
II. ESTABLISHMENT OF THE FACTS
(paras. 18 - 41) ....................................... 3
A. The particular circumstances of the case
(paras. 18 - 37) ............................... 3
B. Relevant domestic law
(paras. 38 - 41) ............................... 5
III. OPINION OF THE COMMISSION
(paras. 42 - 70) ....................................... 7
A. Complaint declared admissible
(para. 42) ..................................... 7
B. Points at issue
(para. 43) ..................................... 7
C. Article 6 para. 1 of the Convention
(paras. 44 - 62) ............................... 7
D. Article 14 of the Convention
(paras. 63 - 68) ............................... 10
E. Recapitulation
(paras. 69 - 70) ............................... 10
DISSENTING OPINION OF SIR BASIL HALL, MRS. J. LIDDY,
MM. L. LOUCAIDES AND A.V. ALMEIDA RIBEIRO IN REGARD TO
ARTICLE 6 PARA. 1 OF THE CONVENTION
11
APPENDIX I : HISTORY OF THE PROCEEDINGS .............. 13
APPENDIX II : DECISION ON THE ADMISSIBILITY ........... 14
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant, a German national born in 1945, is a civil
servant resident in Oberaudorf in the Federal Republic of Germany.
Before the Commission he is represented by Freiherr von Ritter zu
Groenesteyn, a lawyer practising at Marzell in the Federal Republic of
Germany.
3. The application is directed against the Federal Republic of
Germany. The Government are represented by their Agent,
Mr. J. Meyer-Ladewig, Ministerialdirigent, of the Federal Ministry of
Justice.
4. The case relates to the applicant's complaints under Article 6
of the Convention, and Article 14 of the Convention taken together with
Article 6 about the short time-limit for filing an objection against a
penal order, and that the latter was not served on him personally.
B. The proceedings
5. The application was introduced on 16 April 1986 and registered
on 18 April 1986.
6. On 11 October 1988 the Commission decided to communicate the
application to the respondent Government and to invite them to submit
written observations on the admissibility and merits of the
application.
7. The Government's observations were submitted on 4 January
1989. After two extensions of his time-limit, the applicant submitted
his observations in reply on 19 May 1989.
8. On 11 October 1989 the Commission decided to invite the
parties to a hearing on the admissibility and merits of the complaint
under Article 6 para. 1 of the Convention concerning the circumstances
in which the penal order was served on the applicant.
9. Following two postponements, the hearing took place on 4
September 1990. The respondent Government were represented by their
Agent, Mr. J. Meyer-Ladewig, and Mr. G. Uhink, Amtsrat, also of the
Federal Ministry of Justice. The applicant, who attended the hearing
in person, was assisted by his lawyer, Mr. G. Freiherr von Ritter zu
Groenesteyn.
10. Following the hearing the Commission declared the application
admissible.
11. The parties were then invited to submit any additional
observations or further evidence they wished to submit. The
Government were also invited to submit certain further information.
12. The Government submitted the information requested as well as
further submissions on 19 November 1990. The applicant submitted
further observations on 19 December 1990.
13. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, placed
itself at the disposal of the parties with a view to securing a
friendly settlement of the case. In the light of the parties'
reactions the Commission now finds that there is no basis on which a
friendly settlement can be effected.
C. The present Report
14. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes in plenary session, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
The text of the Report was adopted by the Commission on 30
May 1991 and is now transmitted to the Committee of Ministers in
accordance with Article 31 para. 2 of the Convention.
15. The purpose of the Report, pursuant to Article 31 para. 1 of
the Convention, is
(1) to establish the facts, and
(2) to state an opinion as to whether the facts
found disclose a breach by the State concerned of
its obligations under the Convention.
16. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application forms Appendix II.
17. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. Particular circumstances of the case
18. On 15 April 1984 the applicant and his son boarded, at
Kufstein in Austria, a train in the direction of Munich. In the
course of a dispute with the train conductor, the latter took away
documents from the applicant who then apparently grasped the
conductor's shoulders, withdrew the documents and threw them on the
floor. In the course of this dispute the applicant's son hit the
conductor on the head with a wooden stick.
19. On 25 April 1984 the Railway Police (Bahnpolizei) of the German
Federal Railway (Deutsche Bundesbahn) questioned the applicant as to
the occurrences. The latter replied that he would not make any
statement, and that he would obtain a lawyer.
20. Subsequently, the applicant's wife was invited to give
evidence. On 30 May 1984 the applicant's lawyer replied that the
applicant's wife would exercise her right under the German Code of
Criminal Procedure (Strafprozessordnung) to refuse to give evidence.
21. On 12 July 1984 the Kiefersfelden customs police reported the
incident to the Public Prosecutor's Office at the Traunstein Regional
Court (Landgericht), stating that all necessary investigation as well
as the questioning of the witnesses and of the accused had already
taken place.
22. On 7 August 1984 the Public Prosecutor's Office
(Staatsanwaltschaft) at the Traunstein Regional Court (Landgericht)
wrote a letter (Schreiben) to the applicant, stating that he was
charged with the offence of compulsion (Nötigung). The applicant was
further told that if he paid a fine of 300 DM before 1 October 1984,
no public action (öffentliche Klage) would be brought against him and
no entry would be made in the criminal register (Strafregister).
However, as a further condition he would have to agree to this
termination of the proceedings by sending in an enclosed form by 20
September 1984.
23. The letter also stated that if the applicant did not reply
(ohne weitere Benachrichtigung) he would be indicted (wird Anklage
erhoben) without further notification.
24. The applicant did not send in the form, nor did he pay
the 300 DM.
25. On 7 November 1984 the Rosenheim District Court (Amtsgericht),
in summary proceedings, issued a penal order (Strafbefehl) in which it
sentenced the applicant to 25 daily rates of 40.- DM for committing
the offences of compulsion and dangerous bodily injury to the
conductor.
26. The penal order concerning the applicant was served on
12 November 1984. As neither the applicant nor his wife were at home,
the penal order was served by depositing (Niederlegung) it at the
Oberaudorf Post Office and leaving a notification thereof in his
letter box.
27. The penal order acquired legal force on 20 November 1984 as
the applicant did not lodge an objection within the time-limit.
28. On 23 November the applicant's wife stated in an affidavit
(eidesstattliche Versicherung) that she had been absent from 6 until 20
November 1984 when she returned home. She had then opened the letter
box, seen the notification, and collected the penal order at the post
office. During her absence the applicant had stayed at home and
worked as usual. However, he had no key for their letter box.
29. On 26 November 1984, the applicant, represented by counsel,
filed an objection against the penal order together with a request to
be reinstituted into the proceedings (Wiedereinsetzung in den vorigen
Stand), claiming that his wife had only opened the letter box on
20 November 1984. The applicant joined the affidavit of his wife of
23 November 1984.
30. The applicant's objection and his request for reinstitution
reached the Rosenheim District Court on 27 November 1984.
31. Following a request for information by the Public Prosecutor's
Office at the Traunstein Regional Court, the Oberaudorf Post Office
stated in a note dated 3 December 1984 that the penal order had
been collected by the applicant's wife on 19 November 1984.
32. On 6 December 1984 the Rosenheim District Court dismissed the
applicant's request for reinstitution into the proceedings on the
ground that, as the information of the Oberau Post Office confirmed,
the applicant had duly received the penal order on 19 November 1984,
on which day he could still have filed an objection within the
time-limit. Moreover, the applicant had not filed his request for
reinstitution into the proceedings within the time-limit stated in
Section 45 of the Code of Criminal Procedure (see below Relevant
domestic law).
33. On 14 December 1984 the applicant's wife made a second
affidavit in which she supplemented her first affidavit of 23 November
1984. She stated that she had personally fetched the penal order at
the Oberaudorf Post Office on 19 November 1984, though she had only
handed it to the applicant on 20 November 1984 as she had not wanted
to irritate (aufregen) her husband the evening before.
34. On 24 January 1985 the Traunstein Regional Court dismissed the
applicant's appeal (Beschwerde). The Regional Court noted in
particular the discrepancy between the affidavit of the applicant's
wife of 23 November 1984 and information supplied by the Oberaudorf
Post Office. The Court noted furthermore that the discrepancy between
her first and second affidavit had not been explained either. There
existed therefore a suspicion that she had given a false affidavit,
and her statements could not be trusted.
35. On 17 October 1985 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to admit the applicant's constitutional
complaint (Verfassungsbeschwerde) on the ground that it offered no
prospect of success. The Constitutional Court considered that, if on
19 November 1984, i. e. the last day of the time-limit, the applicant
knew about the penal order, he could be expected immediatly to file
the objection in time. He could, for instance, have filed an
objection by telex.
36. The decision continues:
[Translation]
"Even if, however, the applicant could no longer have lodged
an objection in time on 19 January 1984, he would not have
been hindered from complying with the time-limit for filing
an objection through no fault of his own. It is in
principle up to the receiver himself to take sufficient
measures that mail reaches him. Herein the applicant
noticeably failed. Even though during his wife's absence he
himself was not away from home, he did not take care of the
content of the letter box or adequately ensure that the
letterbox could be opened despite its missing key. If
therefore the applicant only obtained knowledge of the penal
order so shortly before the time-limit for filing the
objection expired, with the result that an objection could
not be filed in time, this does not imply the conclusion
that the applicant missed the time-limit through no fault of
his own."
[German]
"Selbst wenn der Beschwerdeführer jedoch am 19. November
1984 einen Einspruch nicht mehr rechtzeitig hätte einlegen
können, wäre er an der Wahrung der Einspruchsfrist nicht
ohne eigenes Verschulden gehindert gewesen. Es ist
grundsätzlich Sache des Empfängers selbst, ausreichende
Vorkehrungen dafür zu treffen, dass ihn Zustellungen
erreichen. Hieran hat es der Beschwerdeführer erkennbar
fehlen lassen. Obgleich er selbst während der Abwesenheit
seiner Ehefrau nicht ortsabwesend war, hat er sich um den
Inhalt seines Briefkastens nicht gekümmert und nicht in
geeigneter Weise dafür Sorge getragen, dass der Briefkasten
trotz des fehlenden Schlüssels hierzu geöffnet werden
konnte. Wenn der Beschwerdeführer deshalb von dem
Strafbefehl erst so kurz vor Ablauf der Einspruchsfrist
Kenntnis nehmen konnte, dass ein rechtzeitiger Einspruch
nicht mehr möglich war, zwingt dies nicht zu der Annahme, der
Beschwerdeführer habe die Einspruchsfrist ohne eigenes
Verschulden versäumt."
37. The Federal Constitutional Court concluded that if the
applicant left the handling of his mail (Postannahme) to other
persons, it could be expected from him that he undertook the necessary
measures that he received the mail completely and in time.
B. Relevant domestic law
38. A penal order is issued, without trial, in cases concerning
minor offences. According to S. 409 of the Code of Criminal Procedure,
in the version in force at that time, the penal order does not acquire
legal force if an objection is filed within seven days after the penal
order has been served. This was also stated in the penal order
concerning the applicant. The objection which need not be
substantiated must be filed in writing or otherwise recorded (zu
Protokoll) at the office concerned, whereupon trial proceedings are
instituted in respect of the charges stated in the penal order.
39. Section 410 of the version of the Code of Criminal Procedure
in force since 27 January 1987 provides for a time-limit of two weeks
for filing an objection against a penal order.
40. As regards the procedure of serving documents (Zustellung)
Section 37 of the Code of Criminal Procedure refers to the Code of
Civil Procedure (Zivilprozessordnung). The latter provides in Section
182 that, if a document cannot be personally served, it may be
deposited inter alia at a post office; a written notification of the
deposit must then be given to the person concerned as is usually
done in the case of normal letters (in der bei gewöhnlichen Briefen
üblichen Weise).
41. According to Section 44 of the Code of Criminal Procedure,
reinstitution into the proceedings is granted where a person,
through no fault of his own, is prevented from meeting a time-limit
(ohne Verschulden verhindert, eine Frist einzuhalten). Section 45 of
the Code of Criminal Procedure states that the application for
reinstatement must be made within one week of the hindrance ceasing to
exist.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
42. The Commission has declared admissible the applicant's
complaints under Article 6 para. 1 (Art. 6-1) of the Convention and
Article 14 (Art. 14) of the Convention taken together with Article 6
(Art. 6) about the short time-limit for filing an objection against a
penal order, and that the latter was not served personally on him.
B. Points at issue
43. Accordingly, the issues to be determined are
- whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention, and
- whether there has been a violation of Article 14 (Art. 14) of the
Convention taken together with Article 6 (Art. 6).
C. Article 6 para. 1 (Art. 6-1) of the Convention
44. Article 6 para. 1 (Art. 6-1) of the Convention states, insofar
as it is relevant:
"In the determination ... of any criminal charge against
him, everyone is entitled to a fair and public hearing ...
by an independent and impartial tribunal established by
law."
45. The applicant complains of the short time-limit for filing an
objection against a penal order and that it was not served on him
personally. He submits that it is not established with certainty
whether his wife handed him the penal order on 19 or on 20 November
though he should be granted the benefit of the doubt that it was the
20 November 1984.
46. The applicant further points out that the effects of a
conviction remain the same, whether it is pronounced in regular
criminal proceedings or in penal order proceedings. In the present
case, he had no rights of defence. Moreover, the letter of the Public
Prosecutor's Office of 9 August 1984 did not refer to the possibility
of an ensuing penal order. The letter solely mentioned the offence of
compulsion, whereas in the penal order he was convicted, in addition,
of dangerous bodily injury.
47. The Government contend that, in view of the special features
of the proceedings concerning penal orders for minor offences, the
time-limit of one week to file an objection does not violate Article 6
(Art. 6) of the Convention. Absences for professional reasons or holidays
can be taken into account upon request for reinstatement into the
proceedings. In the present case the penal order acquired legal force
on the ground that the applicant failed to show that he was prevented
through no fault of his own from filing his objection in time.
48. The Government further submit that the applicant, whose
objection and request to be reinstituted into the proceedings were
received by the Rosenheim District Court only on 27 November 1984, in
fact did not even comply with the time-limit stated in Section 45 of
the Code of Criminal Procedure for filing a request for reinstitution.
49. The Commission recalls that the right of access to court is
the constituent element of the right to a fair trial, as guaranteed in
Article 6 para. 1 (Art. 6-1) of the Convention. However, this right
is not absolute, but subject to implied limitations. Furthermore,
criminal proceedings providing for a waiver of the right to have one's
case dealt with by a tribunal in a full trial, have advantages for the
individual concerned as well as for the administration of justice and
do not in principle offend against the Convention (see Eur. Court
H.R., Deweer judgment of 27 February 1980, Series A No. 35, p. 25 et
seq., para. 49). The individual may frequently prefer not to stand
trial in public.
50. The Commission considers that for these reasons penal order
proceedings do not affect the right of the accused to a fair hearing
before a court, if the accused can effectively object to the penal
order and thus bring about a normal trial.
51. The Commission considers that the responsibility for the
institution and due conduct of criminal proceedings against a person
lies in principle with the competent authorities themselves, and it
cannot be expected from the defendant to contribute towards his own
conviction. Thus, where the communication of the penal order is
relevant for the calculation of the time-limit to file an objection,
an issue may arise under Article 6 para. 1 (Art. 6-1) of the
Convention as to the access to court. In this respect the Commission
considers that strict conditions must govern the serving of the penal
order on the person concerned. Adequate safeguards must be provided
for persons who through no fault of their own have been prevented from
complying with the time-limit. Nevertheless, where adequate
safeguards exist, it is compatible with Article 6 para. 1 (Art. 6-1)
of the Convention if the national authorities provide certain limits
to an abuse of these safeguards, for instance, if it is attempted to
obstruct the due conduct of criminal proceedings by deliberately
avoiding the serving of certain documents.
52. In the present case, the Commission notes that the penal order
was served on the applicant on 12 November 1984. However, as neither
he nor his wife were at home, the penal order was deposited at the
post office, and a notification was put in the applicant's letter box.
53. The applicant then had the right under German law in force at
that time to lodge an objection against the penal order within seven
days. Moreover, the applicant was entitled to request reinstitution
into the proceedings after expiry of the time-limit if he had been
prevented through no fault of his own - e.g. absence for professional
reasons or holidays - from lodging his objection in time.
54. The Commission further observes that the penal order against
the applicant acquired legal force on the ground that he failed to
lodge an objection in time. His request for reinstitution was
dismissed by the German courts, inter alia, on the ground that he had
not shown that he had been prevented through no fault of his own from
lodging his objection in time.
55. It is true that in the applicant's submissions he was
effectively barred from access to a court as the time-limit was too
short and the penal order was not served on him personally.
56. The Commission notes that according to the German law
applicable at the time (see above, para. 38), the time-limit for
filing an objection against a penal order amounted to seven days.
Although rather short this time-limit cannot be seen as contradicting
the Convention since German law provides for reinstitution whenever
the person concerned was not, without his own fault, able to object in
time.
57. The Commission observes that on 25 April 1984 the applicant
was heard by the Railway Police. Thereafter he was aware that
criminal proceedings were pending against him. On 30 May 1984 the
applicant's lawyer filed a communication with the prosecuting
authorities. On 7 August 1984 the Public Prosecutor's Office informed
the applicant that no public action would be brought against him if he
paid a fine of 300 DM and returned a form. Furthermore, there would
be no entry in the criminal register.
58. In such circumstances the Commission considers that the
applicant, who was represented by a lawyer, must have been aware of the
summary nature of these criminal proceedings and that, having failed
to pay the fine, the outcome in the imminent future would most likely
be a penal order.
59. The Commission furthermore notes that in the days after the
penal order was deposited and a notification put in the applicant's
letter box, the applicant stayed at home and worked as usual. However,
he states that he had no key for his letter box which could then only
be opened by his wife. The latter, however, was absent until 19
November 1984.
60. In the Commission's opinion, in such a situation the applicant
could reasonably be expected to obtain a key to his letter box in
order to have ready access to any mail addressed to him, or at least
to ensure that other persons entrusted with the key would forward him
his mail quickly and completely. While a system which requires the
personal serving of documents on the accused presents certain
safeguards the Commission cannot find that the use of normal postal
communications by the competent authorities raises as such an issue
under Article 6 (Art. 6) of the Convention.
61. If the applicant failed to undertake these precautions, it
cannot be said that in the present case the authorities unfairly
barred the applicant's access to a court within the meaning of Article
6 para. 1 (Art. 6-1) of the Convention.
Conclusion
62. The Commission concludes, by 9 votes to 4, that there has been
no violation of Article 6 para. 1 (Art. 6-1) of the Convention.
D. Article 14 (Art. 14) of the Convention
63. Article 14 (Art. 14) of the Convention states:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin,
association with a national minority, property, birth or
other status."
64. The applicant complains under Article 14 (Art. 14) of the
Convention taken together with Article 6 (Art. 6) that the Public
Prosecutor's Office had three months to indict him whereas he only had
seven days to file the objection.
65. The Government submit that at that stage of the proceedings
the Public Prosecutor's Office has different functions. In
particular, the Public Prosecutor's Office must carefully investigate
all incriminating and exonerating circumstances of the case.
66. The Commission considers that an issue could arise under these
provisions if, at a certain stage in court proceedings, the Public
Prosecutor's Office, for instance, was at an advantage in having more
time to submit pleadings than the accused (see No. 10092/82, Dec.
5.10.85, Baraona v. Portugal, D.R. 40 p. 118 at p. 136 f).
67. However, in the Commission's opinion, the present case falls
to be distinguished from the above situation. In particular, the
applicant is comparing two different stages of the proceedings,
namely, on the one hand, the preparation by the Public Prosecutor's
Office of the indictment before the penal order is issued and, on the
other, the time-limit to file, without further substantiation, an
objection after the penal order has been served.
Conclusion
68. The Commission concludes, by 12 votes to 1, that there has
been no violation of Article 14 (Art. 14) of the Convention taken
together with Article 6 para. 1 (Art. 6-1).
E. Recapitulation
69. The Commission concludes, by 9 votes to 4, that there has been
no violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 62).
70. The Commission concludes, by 12 votes to 1, that there has
been no violation of Article 14 (Art. 14) of the Convention taken
together with Article 6 para. 1 (Art. 6-1) (para. 68).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Dissenting Opinion of Sir Basil HALL,
Mrs. J. LIDDY, MM. L. LOUCAIDES and A.V. ALMEIDA RIBEIRO
in regard to Article 6 para. 1 of the Convention
We find ourselves unable to agree with the opinion of the
majority of the Commission that there was no violation of Article 6
para. 1 of the Convention in this case.
On 7 November 1984 the Rosenheim District Court, without a
trial, issued a penal order sentencing the applicant to a fine for
compulsion (Nötigung) of and inflicting grievous bodily harm
(gefährlichen Körperverletzung) on a female railway official. This
sentence became definitive on 20 November 1984.
Plainly a criminal charge was involved. Equally plainly in the
determination of that charge no public hearing at which the applicant
was present was held.
The European Court of Human Rights has in several occasions
held that a person may of his own free will either expressly or
tacitly waive the right given by Article 6 para. 1 to a public
hearing. However, a waiver must be made in an unequivocal manner, and
must not run counter to any important public interest (see for example
the Håkansson and Sturesson judgment of 21 February 1990, Series A No.
171, page 20 para. 66). The Court has recently remarked: "Waiver of a
right guaranteed by the Convention - in so far as it as permissible -
must be established in an unequivocal manner". (Oberschlick v. Austria
judgment of 23 May 1991, to appear as Series A No. 204, p. 17 para. 51)
In the Deweer case (Eur. Court H.R. judgment of 24 February
1990, Series A No. 35), Mr. Deweer had been told by the Procureur du
Roi that criminal proceedings against him could be settled on payment
of 10,000 Belgian francs within 8 days. Mr. Deweer made the payment
and settled the proceedings. The European Court of Human Rights
commented (p. 25 para. 49) that this type of waiver had undeniable
advantages for the individual concerned as well as for the
administration of justice, and did not in principle offend against the
Convention, but concluded (p. 29 para. 54) that on the facts of the
case the waiver was tainted by constraint.
In this case there was a system for settlement of criminal
charges comparable to that in the Deweer case. The Public Prosecutor
on 7 August 1984 proposed a settlement on a charge of compulsion on
the payment of 300 DM, on payment of which there would be no charge
and no entry in the criminal register. The applicant did not reply
and no waiver of his rights was made or could be inferred. Summary
proceedings were instituted and the Rosenheim District Court issued a
penal order relating not only to compulsion but also to grievous
bodily harm. This penal order would become a definitive conviction
and sentence unless objection was taken to it within 7 days of
service. The Court regarded the order as having been served on 12
November 1987, when it was deposited at the Oberaudorf Post Office. A
notification of that having been done was put in the applicant's
letter box. No objection having been received, the order became
definitive on 20 November 1987. According to the applicant it was on
that day he first saw the order, his wife having been away and having
taken the key to the letter box with her.
The question is whether the applicant did waive his right to a
public trial to which the guarantees provided by Article 6 could
apply.
Where the public interest permits a waiver, even if the charge
is of a minor offence, the question arises whether it is incompatible
with Article 6 for a law to provide that, if no reply is given to a
notice which in effect requests waiver of an Article 6 right, that
right shall be deemed to have been waived. We do not find it
necessary to express an opinion on that point. Even if such a system
was compatible with Article 6 it is essential that the individual to
whom the notice is addressed should be subjected to no constraint, and
furthermore must have a realistic opportunity and sufficient time to
consider whether he should waive his rights. If a time limit has
passed the authorities must be very ready to re-open the matter and to
reinstitute proceedings if need be if it becomes apparent that no
waiver was intended.
Time for consideration whether there should or should not be a
waiver of a Convention right can only begin to run at the time at
which the individual becames aware of the proposal. There was no
personal service in this case nor was the document delivered by a
postman to a person authorised to receive it at Mr. Hennings' house.
There was no certainty when he would first see it. In the
circumstances of this case the document was not, according to the
applicant, seen by him until 20 November 1987 the date on which the
penal order became definitive.
A decision as to whether in such a case an objection should be
made is not one to be taken in a hurry. The practical consequences
have to be considered, and there will usually be a need to consult a
lawyer before making a decision. There was the complication that an
additional offence had been added. There may well have been the need
to take into account the fact that the applicant was himself a railway
official. The formulation of an objection is not necessarily a simple
matter. The Court was some 25 km away. A requirement that a person
must deliver his decision within 7 days of his receiving a notice as
to whether he wishes to waive a Convention right or not would in our
view be too rigid.
We note that the applicant took no step to deal with his mail
during his wife's absence. In our view he was not under an obligation
to do so, but in any case that can have no bearing on the question
whether he has waived his Convention rights.
In our opinion the applicant did not either expressly or
tacitly waive his rights under Article 6 para. 1. His application for
reinstitution in the proceedings was refused. There was accordingly a
violation of Article 6 para. 1 of the Convention.
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
________________________________________________________________________
16 April 1986 Introduction of the application
18 April 1986 Registration of the application
Examination of Admissibility
11 October 1988 Commission invites the respondent
Government to submit observations
on the admissibility and merits
4 January 1989 Submission of Government's observations
19 May 1989 Submission of applicant's observations
in reply
11 October 1989 Commission's decision to invite the
parties to an oral hearing
4 September 1990 Oral hearing; Commission's deliberations
on the merits; application declared
admissible
Examination of the merits
12 January 1990 ) Commission's consideration of the
13 April 1991 ) state of proceedings
28 May 1991 Commission's deliberations on the merits
and final vote
30 May 1991 Adoption of the Report
Full & Egal Universal Law Academy