Information Note on the Court’s case-law 54
June 2003
Reuther v. Germany (dec.) - 74789/01
Decision 5.6.2003 [Section I]
Article 35
Article 35-1
Exhaustion of domestic remedies
Effective domestic remedy
Failure to pay sum required by the Constitutional Court of Bavaria in order for appeal to be examined: inadmissible
Article 6
Civil proceedings
Article 6-1
Access to court
Obligation to lodge advance costs in proceedings before the Constitutional Court: inadmissible
In December 1999, a district court made a criminal order against the applicant. The prosecution withdrew the order and the district court decided, in June 2000, that the fees necessarily incurred by the applicant were to be paid by the State. The applicant’s representative claimed reimbursement of some 950 euros. The district court rejected the representative’s claim on the ground that he was not a lawyer approved by a German court and had not been approved by the court as the applicant’s defending counsel. His fees were therefore not necessary within the meaning of the applicable law. Furthermore, the applicant had merely claimed a flat rate sum, which could not be reimbursed. The regional court upheld the decision. The applicant appealed to the Constitutional Court of Bavaria. The judge of the Constitutional Court informed the applicant of the obstacles to the admissibility and the merits of his action. In such cases, the Constitutional Court could require the person concerned to pay a certain sum before proceeding to examine the action. The judge allowed the applicant one month to respond, failing which the action would be considered settled. The applicant responded. By a decision of January 2001, the Constitutional Court, sitting as a bench of three judges, ordered the applicant to pay 1,500 DEM as an advance on fees (Kostenvorschuss). The decision was accompanied by a letter from the judge explaining that the action was inadmissible or manifestly ill founded. The applicant did not pay the sum demanded.
Inadmissible under Article 6 § 1 (fair trial): The applicant did indeed bring before the Constitutional Court the complaints which he subsequently raised before the Court from the aspect of the right to a fair trial. However, having refused to pay the sum which the Constitutional Court requested as an advance on the fees before adjudicating on the action, the applicant deprived the Constitutional Court of the opportunity to hear and determine those complaints. He therefore did not satisfy the condition laid down in Article 35 § 1 of the Convention. The letters from the judge of the Constitutional Court informing the applicant of the obstacles to the admissibility or the merits of his application cannot be regarded as a decision of the Constitutional Court, thus rendering it unnecessary for the applicant to request a formal decision of that court: failure to exhaust domestic remedies.
Inadmissible under Article 6 § 1 (access to a tribunal): The obligation to pay the Constitutional Court the sum of 1,500 DEM by way of an advance on fees before the court would adjudicate on the action is not a restriction on the right of access to a tribunal that is in itself incompatible with Article 6 § 1 of the Convention: manifestly ill founded.
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