AS TO THE ADMISSIBILITY OF
Application No. 12304/86
by K.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 21 January 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 4 April 1986 by
K. against the Federal Republic of Germany and registered on 4 August
1986 under file No. 12304/86;
Having regard to
- the observations submitted by the respondent Government on
27 February 1987 and the observations in reply submitted by
the applicant on 28 April 1987;
- the parties' submissions at the oral hearing of 21 January 1988;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows:
The applicant, a German citizen born in 1932, is a businessman
residing in Berlin. Before the Commission he is represented by
Messrs Kärgel, Poggendorf, Beuermann and Stoecker, lawyers practising
in Berlin. The present application was signed by Mr Stoecker.
On 14 September 1983 the applicant, who runs a chemicals
factory, was convicted by the Tiergarten District Court (Amtsgericht)
of attempted water pollution and environmentally harmful waste
disposal and sentenced to nine months' imprisonment. However, the
execution was suspended for a probationary period of two years.
The applicant's appeal (Berufung) against this judgment was
rejected by the Berlin Regional Court (Landgericht) on 23 May 1985.
The lawyer who had defended the applicant before the Regional
Court then lodged an appeal on points of law (Revision). Thereafter,
the applicant charged Mr Kärgel, of the above law firm, to represent
him in the appeal proceedings.
On 23 August 1985, the last day before the expiry of the
time-limit, Mr Kärgel submitted the grounds for the appeal on points
of law. Counsel generally alleged a violation of substantive law and
added he would submit further arguments which he had not yet been able
to formulate as he had been charged with the case only shortly before.
The statement was signed by Mr Kärgel himself with the typewritten
supplement underneath the signature: "counsel" (Rechtsanwalt).
On 17 October 1985 the Court of Appeal (Kammergericht)
declared the appeal inadmissible on the ground that the statement of
23 August 1985 had not been correctly signed. The signature did not
reveal the identity of the person who had signed the statement and
therefore did not meet the requirements of Section 345 para. 2 of the
Code of Criminal Procedure (Strafprozessordnung - StPO) as interpreted
by the German courts. Accordingly the statement was found to be
without legal effect.
On 1 November 1985, Mr Stoecker, another lawyer of the same
law firm, who had officialy been appointed as Mr Kärgel's
representative, requested leave to appeal out of time (Antrag auf
Wiedereinsetzung gegen die Versäumung der Revisionsbegründungsfrist).
The request was signed by Mr. Stoecker. His name was added in
typewriting under his signature.
On 14 November 1985 the Court of Appeal rejected this request
as being inadmissible on the ground that the application was likewise
not correctly signed and did not meet the legal requirements.
On 28 November 1985, the applicant's lawyers made a second
request for leave to appeal out of time. This request was signed by Mr
Kärgel with the typewritten supplement "Kärgel - Rechtsanwalt".
Furthermore, counsel had added his name in parenthesis ("Kärgel") and
in handwriting underneath his signature with every letter written out
legibly.
This request was rejected as inadmissible by the Court of
Appeal on 23 December 1985, again for not having been signed in
accordance with the legal requirements.
On 21 January 1986, the applicant's defence counsel filed a
third request for leave to appeal out of time. He also challenged the
impartiality of the judges concerned of the Court of Appeal. This
challenge was rejected on 10 April 1986 by a unanimous decision of the
challenged judges for pursuing abusive purposes. The request for
reinstatement was declared inadmissible as being lodged out of time.
COMPLAINT
The applicant complains that the Court of Appeal by
establishing too rigid requirements for the validity of his lawyers'
signatures built up unjustified barriers and prevented the merits of
his appeal on points of law from being heard in a fair manner.
The applicant invokes Article 6 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 4 April 1986 and registered
on 4 August 1986.
On 2 December 1986, the Commission decided to bring the
application to the notice of the respondent Government and to invite
them to submit written observations on its admissibility and merits
pursuant to Rule 42 para. 2(b) of the Rules of Procedure.
The respondent Government's observations were submitted on
27 February 1987 and the applicant's reply thereto on 28 April 1987.
On 7 October 1987 the Commission decided to hold an oral
hearing on admissibility and merits. This hearing took place on
21 January 1988. At the hearing the Government were represented by
Mr. J. Meyer-Ladewig, Agent, Ministerialdirigent of the Ministry of
Justice, who was assisted by Mr. H. Stöcker, Ministerialrat of the
Federal Ministry of Justice. The applicant was represented by
Mr. D. Stoecker.
SUBMISSIONS OF THE PARTIES
A. The respondent Government
I. As to the exhaustion of domestic remedies
The Government point out that the applicant had the
possibility to request leave to appeal out of time. In fact such a
request was filed. However, Mr. Stoecker, representing the
applicant's defence counsel, repeated the same mistake as had been
made by Mr. Kärgel, the consequences of which were to be removed by
this request; the statement submitted by him showed a handwritten mark
consisting of two scrawls which did not include a single legible
letter of his name.
In the Government's opinion the requests for leave to appeal
out of time were deliberately not signed in a manner required by the
Court of Appeal.
This could be considered to constitute an abuse of the right
of petition and also raised the question as to whether domestic
remedies had been exhausted in an effective manner.
II. As to the complaint under Article 6 para. 1 of the Convention
In any event the applicant's complaint was manifestly
ill-founded.
Under the relevant provisions of the German Code of Criminal
Procedure the grounds for an appeal on points of law must be lodged
within a certain time-limit. Section 345 para. 2 of the Code of
Criminal Procedure further requires that the grounds of appeal are
submitted in "a document signed by the defence counsel or a lawyer".
According to German case-law and doctrine a signature need not
be legible. It must however consist of characters which sufficiently
reveal the identity of the undersigned. Individual letters must at
least be recognisable. There must be an individual form of
handwriting, which is unique, shows appropriate characteristic
features and appears as the signature of a name, so that a third
person, knowing the name, is able to recognise it when seeing the
signature.
These requirements do serve legal certainty. As regards
statements of particular importance, the undersigned assumes full
responsibility for the content of the statement. A "signature"
consisting of geometrical figures, marks and squiggles which does not
reveal a single letter is not conform to these requirements.
It was of no relevance to compliance with a formal provision
such as Section 345 para. 2 of the Code of Criminal Procedure whether
the author of an illegible handwriting could be identified by other
appropriate means.
The respondent Government point out that Article 6 of the
Convention does not prevent the Contracting States from making access
to existing domestic remedies dependent on certain conditions by means
of statutory rules. To this extent the Commission's task is limited to
examining whether there has been abuse. The provisions regarding
signature of specific statements could not be seen as arbitrarily
limiting access to appellate courts, nor could their strict
interpretation and application by German courts. A lawyer could
without difficulty abide by these requirements.
Moreover, an accused whose lawyer inadvertently signed an
appeal or the grounds for an appeal in an insufficient manner had the
possibility to mend this error by requesting leave to appeal out of
time. Of course, such a request had to be signed in a correct manner.
This was not at all impossible for the applicant's defence counsel. If
need be, an accused could submit the motions for appeal and the
statement of the reasons to the court of appeal even without the
assistance of a lawyer by having them recorded by the registry.
The Berlin Court of Appeal whose decision was complained of in
the instant case did nothing but to apply the law in force.
Rechtsanwalt Kärgel did not "sign" his written pleadings of 23 August
1985, but made a mark on it which resembled a graph curve that did not
reveal a single letter of his name. This mark did clearly not meet
the requirements of Section 345 para. 2 of the Code of Criminal
Procedure.
The 4th Criminal Division of the Berlin Court of Appeal had in
recent years been obliged in numerous cases to reject appeals as
inadmissible because they were not correctly signed by defence
counsel. The law firm involved in the present case already represented
another applicant in an analogous application (Appl. No. 10685/83)
which was declared inadmissible for non-observance of the six months
time-limit. This showed that the lawyers concerned were familiar with
the appellate court's interpretation and application of Section 345
para. 2 of the Code of Criminal Procedure but choose not to abide
by it while other lawyers accepted to sign their submissions to the
Court of Appeal in a manner meeting the strict requirements of that
Court.
The fact that the validity of Mr. Kärgel's signature as a
notary public had never been called in question was of no relevance to
the case under consideration. Written pleadings under Section 345
para. 2 of the Code of Criminal Procedure had to be distinguished
from notarial instruments. In a notarial instrument the name of the
authenticating notary is expressly mentioned in the introduction,
whereas in the case of an illegible signature on the letter of a law
firm consisting of several partners it is not possible to tell which
of the lawyers has signed the letter and bears responsibility for it.
Besides, authentication of private legal transactions by a notary did
not affect the specific public interests that control an appeal in
criminal matters.
The respondent Government accordingly ask the Commission to
declare the application inadmissible for non-exhaustion of domestic
remedies or, alternatively, as being manifestly ill-founded.
B. The applicant
I. As to the exhaustion of domestic remedies
The applicant points out that the previous application (No.
10685/83) referred to by the respondent Government was rejected for
non-observance of the six months' rule (Article 26 of the Convention),
because the Commission considered that a request for leave to appeal
out of time was not an effective remedy that delayed the running of
the six months' time-limit.
The applicant contests the Government's suggestion that his
requests for leave to appeal out of time had deliberately been signed
by his defence counsel in a manner unacceptable to the Court of
Appeal. He submits that his counsel signed these requests as he
usually signs all documents.
II. As to the complaint under Article 6 para. 1 of the Convention
The applicant maintains that the Court of Appeal applied
Section 345 para. 2 of the Code of Criminal Procedure in a way
contrary to Article 6 para. 1 of the Convention.
The only issue relevant to the application of this provision
was whether the author of a statement who by signing the document
concerned assumed responsibility for its contents can be identified.
Therefore a defence counsel had to use his usual signature which is
characteristic for him.
It would be contrary to the concept of legal certainty to
request the defence counsel to use a different signature in his
submissions to the Court of Appeal only. Signing a document with a
different signature would indicate that the defence counsel did not
assume responsibility for the statement concerned.
Applicant's counsel submits that mainly the Fourth and also
the Third Division of the Court of Appeal often reject appeals as
being inadmissible for not having been correctly signed. The
applicant refers to a newspaper article published in November 1983
from which it appears that this practice of some divisions of the
Court of Appeal was a matter of debate and criticism in the Legal
Committee of the Berlin Diet (Abgeordnetenhaus). It is submitted that
neither Mr. Kärgel nor Mr. Stoecker have ever encountered difficulties
with other divisions of the Court of Appeal in civil or criminal
matters or with the Federal Court of Justice.
The applicant finally draws attention to the fact that Mr.
Kärgel's signature has never been subject to criticism whilst acting
in his capacity as notary public. The office of a notary public is a
public office and consequently affects public interests at least in
the same way as an appeal in criminal matters.
Furthermore, in the instant case the name of the undersigning
lawyer was typewritten under the signature in several of the
statements concerned.
THE LAW
The applicant complains under Article 6 (Art. 6) of the
Convention that he was deprived of his right to a fair hearing of his
appeal on points of law because this appeal was dismissed as being
inadmissible by the Berlin Court of Appeal for not having been signed
correctly by his defence counsel.
Article 6 para. 1 (Art. 6-1) of the Convention secures to
everyone charged with a criminal offence the right to a fair and
public hearing. This right includes the right of access to a court
(Eur. Court H.R., Golder judgment of 7 May 1975, Series A no. 18, p.
18 para. 36, and Ashingdane judgment of 28 May 1985, Series A no. 93,
p. 24 para. 55). It is further recognised that the guarantees of
Article 6 (Art. 6) of the Convention do also apply to appeal
proceedings once a Contracting State has set up courts of appeal (Eur.
Court H.R., Delcourt judgment of 17 January 1970, Series A no. 11, p.
13 para. 25 and Axen judgment of 29 June 1982, Series A no. 72, p. 12
para. 27).
The Government first argue that the Commission is prevented
from examining the merits of the applicant's complaint because his
defence counsel failed to sign the requests for leave to appeal out
of time in the way prescribed by law and that consequently domestic
remedies were not effectively exhausted. The Commission considers
however that the question of whether or not the applicant's appeal on
points of law and also his subsequent requests for leave to appeal out
of time were correctly signed by counsel is closely related to the
substance of the applicant's complaint. In these particular
circumstances the applicant can be considered to have exhausted
domestic remedies.
As to the merits the Commission first recalls that according
to its case-law Article 6 (Art. 6) does not debar Contracting States from
making regulations governing the access of litigants to an appellate
court as long as such regulations do not arbitrarily limit access to such
court (No. 727/60, Dec. 5.8.60, Yearbook 3 p. 302 [308]; No. 8407/78,
Dec. 6.5.80, D.R. 20 p. 179 [180]).
The requirement established by Section 345 para. 2 of the
German Code of Criminal Procedure that an appeal on points of law has
to be signed by the defence counsel or another lawyer does not in
itself unduly restrict an accused's right to lodge an appeal, as was
not contested by the applicant. The interpretation of this provision
by the German courts, that a signature need not be legible but must
present certain characteristic features in order to have legal effect,
can likewise not, in principle, be considered as arbitrary.
The question whether or not in a given case a signature
presents such characteristics and conforms with the requirements of
Section 345 para. 2 of the German Code of Criminal Procedure is a matter
that has to be decided by the national courts. The Commission's
supervision is limited to an examination as to whether the interpretation
and application of the provision in question might have involved a
violation of any of the rights and freedoms set out in the Convention,
in particular of Article 6 (Art. 6) of the Convention as alleged by the
applicant.
The applicant argues that he was deprived of a fair hearing of
his appeal on points of law because the Court of Appeal arbitrarily
considered that the appeal was not correctly signed by his defence
counsel. The Commission recognises that from some lawyers' point of
view the decisions complained of in the present case may appear to be
excessively formalistic.
Nevertheless, however regrettable the appellate court's rigid
application of Section 345 para. 2 of the German Code of Criminal
Procedure may be, it cannot be found that the applicant was thereby
denied access to this court. In fact, according to the uncontested
submissions of the respondent Government, the applicant would have
been granted leave to appeal out of time had his defence counsel
signed at least the request for such leave in conformity with the
requirements of German law as interpreted by the Court of Appeal.
Counsel had every reason to do so as he knew that the Court of Appeal
considered his habitual signature as a squiggle that did not comply
with the requirements of Section 345 para. 2 of the German Code of
Criminal Procedure. In the applicant's interest, he could therefore
have signed the request for leave to appeal out of time in a way which
would satisfy the Court. It has not been alleged by the applicant
that such a request would have been rejected.
In these circumstances it cannot be found that the Berlin
Court of Appeal applied Section 345 para. 2 of the German Code of
Criminal Procedure in such a manner as to deprive the applicant
arbitrarily of any possibility to have the merits of his appeal on
points of law decided by that Court.
It follows that the application must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2 (Art.
27-2) of the Convention.
For these reasons, the Commission
&_DECLARES THE APPLICATION INADMISSIBLE.&S
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C. A. NØRGAARD)