5.  The applicant was born in 1974 and lives in Berlin.
6.  On 13 March 2010 there was a fight in the applicant’s apartment between the applicant, S. (the applicant’s flatmate at the time) and S.’s guests. By letter from the police of 18 March 2010, the applicant was notified that preliminary proceedings against him had been initiated and that he was accused of having insulted S. and of having pushed and punched him in the face, resulting in bruising to S.’s skull and jaw problems. The letter also stated that he was given the opportunity to submit written or oral comments and that he was free, at any time, even before being questioned, to consult defence counsel to be chosen by him.
7.  On 7 March 2011 the Berlin Tiergarten District Court issued a penal order (Strafbefehl) against the applicant, finding him guilty of libel and two counts of assault against S. and B., a guest at the event in question, and sentencing him to 80 day-fines of EUR 30 each. The applicant, who had applied for access to, and been given copies of the file prior to the issuance of the penal order, lodged a timely objection against that order and asked to be given access to the file again, which was granted.
8.  On 9 May 2011 the District Court admitted S. as private accessory prosecutor (see paragraph 18 below), represented by counsel paid for by S. himself.
9.  On 12 May 2011 S.’s lawyer, in the context of the criminal proceedings, lodged civil claims for compensation under Articles 403 et seq. of the Code of Criminal Procedure (see paragraph 19 below) and applied for legal aid to be granted to S. for the pursuit of those claims. The applicant was given the opportunity to submit written comments on this and made use of that opportunity.
10.  On 24 May 2011 the Berlin Tiergarten District Court granted legal aid to S. and appointed his lawyer to represent him in the pursuit of the civil claims in the context of the criminal proceedings.
11.  The following day the main hearing took place, lasting for some 75 minutes. The District Court orally heard S. as well as B. and M., the latter two having been present at the event in question, as witnesses and also evaluated a medical certificate concerning the injuries sustained by S. It convicted the applicant of libel and two counts of assault and sentenced him to a fine of 90 day-fines of EUR 15 each. In respect of the civil claims, it also ordered him to pay EUR 430 in damages (EUR 400 in respect of non‑pecuniary damage and EUR 30 in respect of pecuniary damage) plus interest to S. S.’s lawyer had been given leave to address only the civil compensation claim. The applicant had made written submissions setting out his position prior to the hearing and was orally heard by the District Court.
12.  On 26 May 2011 the applicant lodged an appeal on facts and law.
13.  On 4 July 2011 the judge presiding over the competent appeals chamber of the Berlin Regional Court informed the public prosecutor’s office of his intention to appoint defence counsel for the applicant. That same day, Mr Förster, the applicant’s lawyer in the Convention proceedings, gave notice that he now represented the applicant. In a written submission of 11 July 2011, he stated that he wished to pursue the appeal lodged by the applicant as an appeal on points of law (resulting in the competency of the Berlin Court of Appeal, rather than of the Regional Court). In addition to complaining of a wrongful application of law to the merits of the case, he alleged a procedural error because no defence counsel had been present for the applicant throughout the trial before the District Court. He claimed that representation by defence counsel had been necessary, given that the private accessory prosecutor S. had been represented by counsel who had been present at the main hearing.
14.  On 14 March 2012 the Berlin Court of Appeal dismissed the appeal on points of law, save for allowing the applicant to pay the fine in instalments. It found that the conditions for mandatory appointment of defence counsel under Article 140 § 2 of the Code of Criminal Procedure (see paragraph 20 below) were not met. The legislature had deliberately chosen to limit the presumption that an accused cannot defend himself to cases where the competent court had appointed counsel for the victim for the private accessory prosecution in accordance with Articles 397a and 406g §§ 3 and 4 of the Code (see paragraph 20 below). There were legitimate reasons for that distinction, given that counsel was appointed for the private accessory prosecutor for victims of certain grave offences or where the victim was not able to safeguard his interests sufficiently, or could not be expected to do so, including in scenarios which gave rise to particular factual or legal difficulties. In the present case, counsel for S. had been appointed by the court only in respect of the civil claims (see paragraph 10 above), but not for the private accessory prosecution, in respect of which counsel had been hired by S. at his own expense (see paragraph 8 above).
15.  Where counsel acted for the (victim and) private accessory prosecutor, without having been appointed by the court, the presumption contained in Article 140 § 2 of the Code did not apply. In such a scenario, the individual circumstances of the case had to be assessed in order to determine whether defence counsel had to be appointed. Turning to the circumstances of the case, the Court of Appeal concluded that the applicant was capable of effectively defending himself without counsel and had indeed done so. It considered that the applicant had knowledge of the parts of the file relevant for the decision, which did not give rise to factual or legal difficulties, that the nature of the offences and the potential sentence at stake were not significant, and that the factual background and the taking of evidence were easily understandable. Counsel for S. had only acted in respect of the civil claims. The applicant’s written submissions, including his timely appeal against the District Court’s judgment, showed that he was capable of safeguarding his legal interests on his own.
16.  On 30 April 2012 the Court of Appeal dismissed the applicant’s request to be heard.
17.  On 18 September 2012 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (no. 2 BvR 1377/12), finding that it was inadmissible because he had not applied for the appointment of defence counsel before the District Court.