FOURTH SECTION
CASE OF HÖLSCHER v. GERMANY
(Application no. 44567/22)
 
 
 
 
 
 
JUDGMENT
 
STRASBOURG
8 July 2025
 
This judgment is final but it may be subject to editorial revision. In the case of Hölscher v. Germany,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
 Lorraine Schembri Orland, President,
 Anja Seibert-Fohr,
 András Jakab, judges,
and Veronika Kotek, Acting Deputy Section Registrar,
Having regard to:
the application (no. 44567/22) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 8 September 2022 by a German national, Mr Thomas Hölscher (“the applicant”), who was born in 1971, lives in Sofia and was represented by Mr S. Schnitzer, a lawyer practising in Offenbach;
the decision to give notice of the application to the German Government (“the Government”), represented by one of their Agents, Ms N. Wenzel, of the Federal Ministry of Justice;
the observations submitted by the respondent Government and the observations in reply submitted by the applicant;
the comments submitted by the German Federal Bar Association (Bundesrechtsanwaltskammer), who was granted leave to intervene as a third party by the President of the Section (Rule 44 § 3 of the Rules of Court);
Having deliberated in private on 17 June 2025,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The application concerns the question whether the dismissal of the applicant’s appeal against his criminal conviction, without an examination of its merits, was in breach of Article 6 § 1 taken together with Article 6 § 3 (c) of the Convention. 2. On 1 November 2016 the Tiergarten District Court convicted the applicant of preferential payments during insolvency (Gläubigerbegünstigung) and three counts of fraud and sentenced him to one year and ten months’ imprisonment suspended on probation. Furthermore, it convicted the applicant of delaying insolvency proceedings and three counts of bankruptcy and sentenced him to a fine. 3. The applicant, represented by counsel, lodged an appeal against that judgment. 4. On 5 May 2020 the Berlin Regional Court held a hearing at which the applicant’s counsel was present whereas the applicant did not attend in person. At the end of the hearing, the Berlin Regional Court fixed the date for the next hearing for 12 May 2020. It ordered the applicant to appear in person and orally summoned him via his counsel who was authorised to receive summonses on behalf of the applicant. The Regional Court indicated that the appeal would be dismissed should the applicant fail to attend the hearing on 12 May 2020 without sufficient excuse. 5. On 6 May 2020 the Regional Court also served a summons in writing and ordered the applicant to appear in person at the hearing on 12 May 2020. The written summons indicated that another hearing would be scheduled should the applicant fail to attend the hearing on 12 May 2020. 6. On 11 May 2020 the Regional Court served another summons in writing ordering the applicant to appear in person on 12 May 2020 and indicating that the appeal would be dismissed should the applicant fail to attend the hearing without sufficient excuse. It stated that the written summons of 6 May 2020 was void because it had erroneously indicated that another hearing would be scheduled should the applicant fail to appear. The applicant received this summons on 13 May 2020. 7. At the hearing of 12 May 2020 the applicant’s counsel was present whereas the applicant did not attend. The Regional Court dismissed his appeal without examining the merits pursuant to Article 329 § 4 of the Code of Criminal Procedure. This provision allows for the dismissal of an appeal on points of fact and law filed by the defendant without an examination of its merits, if the appeal court summoned the defendant to appear in person at the hearing because his presence is deemed necessary despite his being represented by counsel, and the defendant, who had been instructed in the summons about the possibility of such dismissal, does not attend the hearing in person without sufficient excuse. The Regional Court considered that the applicant had been properly summoned on 5 May 2020, ordered to appear in person and warned that his appeal would be dismissed if he failed to attend the hearing on 12 May 2020 in person (see paragraph 4 above). There was also no sufficient excuse for his absence. 8. The Berlin Court of Appeal subsequently dismissed the applicant’s appeal on points of law against the Regional Court’s decision, finding, inter alia, that the applicant had been properly summoned on 5 May 2020 and the summons of 6 May 2020 did not declare the previous summons void so that the contradictory instruction contained in the summons of 6 May 2020 (see paragraph 5 above) had evidently been erroneous and therefore could not affect the validity of the summons of 5 May 2020 and the instructions as to the consequences of a failure to appear at the hearing. 9. On 29 April 2022 the Federal Constitutional Court declined to accept the applicant’s constitutional complaint, without providing reasons (no. 2 BvR 2256/20). The decision was served on the applicant’s counsel on 17 May 2022. 10. The applicant complained before the Court that the dismissal of his appeal without an examination of its merits, on the ground that he had not attended the hearing on 12 May 2020 in person, despite his counsel being present and ready to defend him, had been in violation of Article 6 § 1 taken together with Article 6 § 3 (c) of the Convention.

Outcome for Article 6: violation