CASE OF JOHANSEN v. GERMANY

1. The case originated in an application (no. 17914/10) 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”) by a German national, Ms Ruth Marion Johansen (“the applicant”), on 29 March 2010.
2. The applicant was represented by Mr N. Dotterweich, a lawyer practising in Weimar. The German Government (“the Government”) were represented by two of their Agents, Mr H.-J. Behrens and Mrs K. Behr, of the Federal Ministry of Justice and Consumer Protection.
3. The applicant alleged that her right to a fair trial, comprising a right of access to court, had been breached in the criminal proceedings against her.
4. On 19 March 2015 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1970 and currently lives in London.
A. The proceedings before the Frankfurt am Main District Court
1. The issuing and service of the penal order
6. On 16 October 2008 the Frankfurt am Main District Court issued a penal order against the applicant. Having regard to the written submissions the applicant had made on the charges to the prosecution, the court found the applicant guilty of withholding and embezzlement of employee salaries and sentenced her to a fine of 100 daily rates of EUR 50.
7. According to the record of service, a form containing several options as to the way in which court mail was served, which was issued by a courier and returned to the District Court, the courier had attempted to hand over the penal order to the applicant at her residence on 7 November 2008 at 2.10 p.m. As this had not been possible, the courier had served the penal order on the applicant by placing it in the mailbox appurtenant to her residence (Article 180 of the Code of Civil Procedure, see paragraph 29 below).
2. The applicant ’ s objection against the penal order
8. On 27 December 2008 the applicant filed an objection against the penal order with the Frankfurt am Main District Court and applied for the reinstatement of the proceedings. She argued that her objection was not time-barred as the penal order had not been served on her on 7 November 2008. She had only learnt about the existence of a penal order issued against her on 20 December 2008 when she had found in her mailbox a bill of the court cashier requesting her to pay the fine imposed in the penal order. On calling the court cashier, she had been informed of the order ’ s alleged service on 7 November 2008.
9. The applicant claimed that she was sure that no penal order had been served on her on 7 November 2008. She stated that her counsel, Mr N. Dotterweich, and her husband had been at a court hearing at the Hanau District Court on 7 November 2008 and had therefore come to visit her at her house on that day. In the afternoon she had bade farewell to her counsel. When accompanying him to the front gate, she had checked her mailbox for her daily mail in his presence. She had found neither a penal order nor a notice that a penal order had been deposited in another place.
10. On 6 February 2009 the applicant ’ s counsel supplemented the applicant ’ s submissions. He claimed that he, the applicant, the applicant ’ s mother who was living in the same house as the applicant and the applicant ’ s husband who lived in London had all been at the applicant ’ s house at the time the penal order had allegedly been served. Counsel and the applicant had returned to the applicant ’ s residence at around 12.15 p.m. after having attended a hearing at the Hanau District Court. The applicant ’ s husband had arrived shortly before them and had been waiting for them, together with the applicant ’ s mother.
11. The applicant ’ s counsel explained that no one had rung the doorbell to hand over the penal order while they had been at the applicant ’ s residence. They would have noticed the doorbell ringing, as the applicant had dogs, which were outside and would have barked. At around 3.30 p.m. they had all left the house. At that moment the applicant had taken the mail out of her mailbox. She had immediately checked the contents. There had been no official letter from a court. Such a letter would have stood out and would therefore have been noticed by the persons present, as official court letters came in bright yellow envelopes. The applicant ’ s husband, counsel and the common daughter of counsel and the applicant had then left.
12. The applicant ’ s counsel further submitted that the private postal service company J., which had been in charge of the delivery of official court mail for the Frankfurt am Main District Court, was known for its unreliability. In December 2008, hence shortly after the alleged delivery, the company had had to register as insolvent.
13. The applicant ’ s counsel added to his submissions the affirmations in lieu of an oath of the applicant ’ s mother, the applicant ’ s husband and himself confirming his submissions. The applicant ’ s mother stated, in particular, that she had paid special attention when her daughter took the mail out of the mailbox as, owing to the fact that they lived in the same house, part of her mail was sometimes put into her daughter ’ s mailbox. The applicant ’ s husband declared that when the applicant had taken out the mail he had paid special attention because he had formerly also lived at that address and sometimes mail addressed to him was still sent there.
3. The District Court ’ s decision
14. On 9 April 2009 the Frankfurt am Main District Court rejected the applicant ’ s objection against the penal order as inadmissible and dismissed her application for reinstatement of the proceedings. The court considered it proved that the penal order had been served on the applicant on 7 November 2008 at 2.10 p.m. as was certified by the record of service. The applicant had therefore failed to file her objection, which was received by the court on 27 December 2008, within the two-week time-limit and the penal order had hence become final (see paragraph 27 below).
15. The District Court was also of the view that there was no reason to grant the applicant reinstatement of the proceedings, as it was not apparent why the applicant had been prevented, through no fault of her own, from submitting her objection against the penal order within the two-week time ‑ limit after the delivery of 7 November 2008.
16. The court found that the record of service had probative value for the fact that the penal order had been put into the applicant ’ s mailbox by the courier on 7 November 2008 (Article 418 of the Code of Civil Procedure, see paragraph 29 below). In accordance with the settled case-law, this could only be disproved if facts were presented that convinced the court that there was no possibility that the facts certified by the record of service were correct. The applicant had not been able to furnish the court with such counter-evidence.
17. In its assessment of evidence, the Frankfurt am Main District Court had regard to the written statement of the courier who had delivered the applicant ’ s penal order, whom it had had interviewed by the police as a witness. The courier had explained that she had been registered with J. company to help her husband with the delivery of the court mail since October 2008. When asked by the police to describe how she had delivered official court letters she had stated that official court letters had always been in yellow envelopes. She confirmed that she always rang the doorbells of the addressees. If they did not respond she would deposit a “letter of notification” ( Benachrichtigungsschreiben ) in the mailbox. She confirmed that the signature on the record of service concerning the applicant was hers, the date and the time had been filled in by her husband. She did not specially remember either the service on 7 November 2008 or the applicant ’ s house. When cautioned that she did not have to respond to questions if there was a risk that she might incriminate herself, she had confirmed that she was sure she had served the mail correctly or left a “notice” ( Benachrichtigung ).
18. The District Court concluded that the courier had testified that she had always served the official court mail in accordance with the rules. Moreover, when asked by the police, the Frankfurt am Main branch of J. company had confirmed that no irregularities were known to the company with regard to the service of the court mail. The courier had had no incentive to embezzle the applicant ’ s mail.
19. The court considered, in contrast, that the story described by the applicant to disprove the service of the penal order seemed fabricated. It took into consideration that the declarations in lieu of an oath all came from persons who were close to the applicant and who had a considerable interest in the outcome of the criminal proceedings against her. It further noted that the applicant had not mentioned all the persons who had allegedly been present when she checked her mail in her first submission of 27 December 2008. Moreover, it was not in accordance with general experience in life for someone to check his mail in front of all his family members. As it had been proved by the record of service that the penal order had been put into the applicant ’ s mailbox, potential shortcomings by the courier ’ s failure to ring the doorbell first – which according to the applicant would have resulted in her dogs barking, which they allegedly had not done at the relevant time – would, in any event, have been remedied by the actual service.
B. The proceedings before the Frankfurt am Main Regional Court
20. On 22 April 2009 the applicant, represented by her lawyer, appealed against the decision of the Frankfurt am Main District Court. She claimed, in particular, that according to articles in a national newspaper, the unreliability of the postal service company J. had been revealed, inter alia, by the Oldenburg Court of Appeal and the Kiel Regional Court and that an Aachen local newspaper had reported that court mail had been found in a refuse shed.
21. The applicant further pointed out that the courier ’ s witness statement contradicted the record of service. The courier had described the service of the penal order by way of putting a written notice into the addressee ’ s mailbox, which constituted a substituted service in accordance with Article 181 of the Code of Civil Procedure (see paragraph 29 below). In contrast, the record of service certified service by way of placing the penal order itself in the applicant ’ s mailbox, which constituted substituted service in accordance with Article 180 of the Code of Civil Procedure (see paragraph 29 below).
22. On 10 June 2009 the Frankfurt am Main Regional Court dismissed the applicant ’ s appeal against the decision of the Frankfurt am Main District Court. The court, essentially endorsing the reasons given by the District Court, confirmed the District Court ’ s finding that the penal order had effectively been served on the applicant on 7 November when placed in the applicant ’ s mailbox (Article 37 of the Code of Criminal Procedure, read in conjunction with Article 180 of the Code of Civil Procedure, see paragraphs 28-29 below).
23. The Regional Court considered that the applicant had not furnished the court with sufficient counter-evidence. The court did not have to decide whether J. company had been reliable in all cases. In the case before it, the courier and her husband had had no reason to commit post embezzlement and forgery of documents. The affirmations in lieu of oaths could not prove that the penal order had not been in the mailbox on 7 November 2008. The affirming persons had not testified that they had constantly paid special attention to a possible ringing of the doorbell. Furthermore, it could not be ruled out that the applicant had been inattentive when going through the mail because of the presence of guests. It was likely that the penal order had been hidden among other mail and had probably inadvertently been thrown away or simply ignored.
C. The proceedings before the Federal Constitutional Court
24. On 14 August 2009 the applicant lodged a constitutional complaint with the Federal Constitutional Court in which she claimed that her constitutional right to be heard and her right to a fair trial had been breached in the criminal proceedings against her.
25. On 22 September 2009 the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint without giving reasons (file no. 2 BvR 1891/09). The decision was served on the applicant ’ s counsel on 30 September 2009.
A. Provisions concerning the penal order procedure
26. Under the Code of Criminal Procedure, a penal order ( Strafbefehl ) may be issued by the court against a defendant under the circumstances and in accordance with the procedure set out in the following provisions:
Article 407 of the Code of Criminal Procedure
“(1) In proceedings before the criminal court judge and in proceedings within the jurisdiction of a court with lay judges, the legal consequences of the offence may, in the case of misdemeanours, be imposed, upon written application by the prosecution, in a written penal order without a main hearing. The prosecution shall file such application if it does not consider a main hearing to be necessary, given the outcome of the investigations. ... The application shall constitute preferment of the public charges.
(2) A penal order may impose only the following legal consequences of the offence, either on their own or in combination:
(3) The court shall not be required to give the indicted accused a prior hearing ...”
Article 408 of the Code of Criminal Procedure
“ ... (3) The judge shall comply with the application of the prosecution if he has no reservations about issuing the penal order. ...”
27. The procedure for filing an objection against a penal order is laid down in Articles 410 and 411 of the Code of Criminal Procedure. In their relevant parts they read as follows:
Article 410 of the Code of Criminal Procedure
“(1) Within two weeks following service of the penal order the defendant may lodge an objection against the penal order at the court which issued it, either in writing or orally to be recorded by the registry. ...
(3) Where objections to the penal order are not lodged in time the order shall be equivalent to a final judgment.”
Article 411 of the Code of Criminal Procedure
“(1) Where the objection is lodged out of time or is otherwise inadmissible it shall be dismissed in a decision without a main hearing; an appeal lies against the decision. In all other cases a date shall be set down for the main hearing. [...]
(4) Where an objection has been lodged, the court, when giving judgment, is not bound by the decision made in the penal order.”
B. Provisions concerning the service of documents
28. Pursuant to Article 37 § 1 of the Code of Criminal Procedure, the service of documents – such as penal orders – is governed by the rules on service laid down in the Code of Civil Procedure.
29. Articles 178 ss. and 418 of the Code of Civil Procedure contain rules for different means of substituted service ( Ersatzzustellung ) and the record of service and provide, in so far as relevant:
Article 178 of the Code of Civil Procedure - Substituted service at the residence ...
“(1) Should the person on whom a document is to be served not be located at his residence, ..., the document may be served:
1. At the residence: on an adult family member, a person employed by the family or an adult resident permanently sharing the accommodation, ...”
Article 180 of the Code of Civil Procedure - Substituted service by placement in the mailbox
“Should it not be possible to serve the document in accordance with Article 178 (1) no. 1 [...], the document may be placed in a mailbox appurtenant to the residence ..., or in a similar receptacle that the addressee has put up for the purpose of receiving mail, and which according to general practice is suited to store mail securely. By this placement, the document shall be deemed served. The person so serving it shall note the date of service on the envelope of the document to be served.”
Article 181 of the Code of Civil Procedure - Substituted service by deposit
“(1) Should it not be possible to serve the document pursuant to ... Article 180, the document to be served may be deposited with the court registry of the district court having jurisdiction for the place of service. ... A written notice ( schriftliche Mitteilung ) of such deposit is to be left at the address of the person on whom the document is to be served, using the corresponding form, in the manner usual for the delivery of regular letters or, should this not be possible, the written notice is to be affixed to the door of the residence ... Upon such written notice having been submitted, the document shall be deemed served. ...”
Article 182 § 1 of the Code of Civil Procedure – record of service
“(1) In order to provide proof of service pursuant to Articles 171 and 177 to 181, a record is to be prepared using the corresponding form. Article 418 shall apply to this record of service ( Zustellungsurkunde ).”
Under Article 418 § 1 of the Code of Civil Procedure, the public records concerned by that provision establish full proof of the facts set out therein.
C. Provisions concerning the reinstatement of the proceedings
30. If the penal order has been served on the defendant but the defendant has been prevented from taking notice of the penal order through no fault of his own, the defendant may be granted reinstatement in the proceedings upon his application and may still file an objection against the penal order (Article 44 of the Code of Criminal Procedure). The application for reinstatement must be filed with the court where the time-limit should have been observed within one week from the cessation of the impediment for which the objection could not be lodged in time (Article 45 of the Code of Criminal Procedure).
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
31. The applicant complained that her right to a fair trial, and in particular her right of access to court, had been violated in the criminal proceedings against her. She relied on Article 6 § 1 of the Convention which, in so far as relevant, reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
32. The Government contested that argument.
33. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
34. The applicant took the view that the criminal proceedings against her had failed to comply with her right of access to court and her right to be heard, enshrined in her right to a fair trial under Article 6 § 1 of the Convention.
35. The applicant argued that the domestic courts ’ decision not to allow her objection against the penal order, which she had never received, had deprived her of the possibility to be heard by the court and to defend herself in the criminal proceedings against her. The legal requirements, as construed by the domestic courts, for refuting the probative value of the record of service concerning the penal order, alleging its service on her, had been so strict that it had been de facto impossible to comply with them. Likewise, the domestic courts ’ interpretation of the preconditions for proof that she had been prevented from lodging an objection through no fault of her own had been excessively strict.
36. According to the applicant ’ s submission, the domestic courts ’ interpretation had been overly strict and formal on the following grounds. As the courier had not been the person officially appointed and authorised to serve court mail and had not properly signed the record of service, the courts should not have accorded the record of service the high probative value of an official instrument in accordance with Article 418 of the Code of Civil Procedure (see paragraph 29 above). Furthermore, in her interview before the police, the courier had stated that she had served the penal order by deposit of a written notice, that is, by substituted service in accordance with Article 181 of the Code of Civil Procedure (see paragraph 29 above). Despite this, the courts had considered it proved that the penal order itself had been served on the applicant in accordance with Article 180 of the Code of Civil Procedure (see paragraph 29 above).
37. Moreover, it had repeatedly been reported in the press that J. company, in charge of serving the penal order on her, as well as other postal service companies had failed to deliver mail. These shortcomings following the privatisation of administrative tasks had been known to the domestic courts. In addition, the courts had considered the service of the penal order on her as proved despite the fact that she had submitted ample proof of the fact that the penal order could not have been served on her on 7 November 2008. In particular, she had submitted several affirmations in lieu of an oath in which witnesses, on pain of a criminal penalty, had testified that the penal order had not been served on her in the way described in the record of service on the day in question.
38. According to the Government ’ s submission, the criminal proceedings against the applicant had complied with Article 6 § 1 of the Convention.
39. The Government conceded that the applicant did not have access to a court in so far as the criminal charges against her, of which she had been found guilty in the penal order, had not been reexamined by a court in an oral hearing. However, this lack of access to court was imputable to the applicant. The right of access to court in the penal order proceedings had been secured by the possibility awarded to the applicant to lodge an objection against the penal order within the statutory time-limit. If she had done so, a court would have decided anew on the criminal charges against her following a hearing.
40. The Government stressed that the domestic courts, having thoroughly examined the evidence before them, had concluded without arbitrariness that the penal order had been validly served on the applicant on 7 November 2008 by being deposited in the applicant ’ s mailbox. In accordance with Article 418 of the Code of Civil Procedure, the courts had taken into account the high probative value of the record of service, an official instrument, which offered full proof of the facts affirmed therein unless, in the court ’ s conviction, any possibility that the facts certified in the record were correct was ruled out.
41. In the domestic courts ’ finding, the applicant had not furnished such counter-evidence and had, as a consequence, lodged her objection against the penal order out of time. In particular, contrary to the applicant ’ s submissions before the domestic courts the courier, when heard as a witness, had not admitted that she had delivered the mail by only putting a written notice into the applicant ’ s mailbox in accordance with Article 181 of the Code of Civil Procedure, instead of putting the penal order itself in the mailbox in accordance with Article 180 of the Code of Civil Procedure. The courier ’ s statement that she had put a “letter of notification” ( Benachrichtigungsschreiben ) in the mailbox had meant in the context that she had put the letter containing the penal order and not only a written notice in the mailbox.
42. Moreover, in the domestic courts ’ view, the applicant ’ s submissions, including the affirmations in lieu of an oath submitted by several witnesses, had not disproved the content of the record of service. While the Government conceded that letters had repeatedly gone missing in the post in general, this was still an isolated occurrence in the context of some 66 million letters transported per day by the main postal service company in Germany alone.
(a) Summary of the relevant principles
43. The Court reiterates that penal order proceedings, just as proceedings conducted in the defendant ’ s absence, are not incompatible with the right of access to court enshrined in the right to a fair trial if the person concerned can subsequently obtain from a court which has heard him a fresh determination of the merits of the charge, in respect of both law and fact (see, inter alia, Hennings v. Germany, 16 December 1992, §§ 26-27, Series A no. 251 ‑ A; and Maaß v. Germany (dec.), no. 71598/01, 15 September 2005 ).
44. The right of access to a court entails the entitlement to receive adequate notification of judicial decisions, particularly in cases where an appeal might be sought within a specified time-limit (see Zavodnik v. Slovenia, no. 53723/13, § 71, 21 May 2015 with further references ). The Court further reiterates that the “right to a court”, of which the right of access is one aspect, is not absolute; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned. Nonetheless, the limitations applied must not restrict or reduce the individual ’ s access in such a way or to such an extent as to impair the very essence of the right. Furthermore, limitations will only be compatible with Article 6 § 1 if they pursue a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim pursued (see Běleš and Others v. the Czech Republic, no. 47273/99, § 61, ECHR 2002 ‑ IX; Davran v. Turkey, no. 18342/03, § 37, 3 November 2009; and Célice v. France, no. 14166/09, § 33, 8 March 2012).
45. The Court further reiterates that it is primarily for the national courts to interpret domestic procedural rules such as time-limits, which are designed to ensure legal certainty; the Court ’ s role is limited to verifying whether the effects of such interpretation are compatible with the Convention (see Běleš and Others, cited above, § 60; and Labergère v. France, no. 16846/02, § 17, 26 September 2006 with further references).
(b) Application of these principles to the present case
46. In determining whether the criminal proceedings against the applicant complied with her right of access to court enshrined in Article 6 § 1 of the Convention, the Court notes at the outset that in penal order proceedings under the German Code of Criminal Procedure, defendants on whom a penal order has been delivered can obtain from the criminal courts a fresh determination of the merits of the charge in a hearing. For that purpose, they must lodge an objection to the penal order within two weeks following its service (Articles 410 and 411 of the Code of Criminal Procedure, see paragraph 27 above). These rules thus safeguard the right of access to court of the defendants concerned.
47. In examining whether the domestic courts ’ interpretation of the applicable procedural rules governing the objection to a penal order and, in this context, the proof of service of court mail, complied with the applicant ’ s right of access to court, the Court observes that the standard of proof which the applicant had to comply with, in order to refute the service of the penal order on her, was very high. As it was certified in a record of service, which the domestic courts considered as valid, that the penal order had been put into her mailbox by the courier, the applicant could only disprove that fact if she convinced the court that there was no possibility that the facts certified by the record of service were correct (see paragraphs 16 and 22-23 above).
48. The Court accepts that the high probative value of records of service serves the legitimate aim of legal certainty. Records of service are to prove that court mail has been served on a person, as well as how and when it was served, which ensures clarity in respect of the calculation of time-limits for appeals. The Court observes in this context that the high probative value of the record of service was backed up by provisions of domestic law which aimed at ensuring that the content of the record of service was correct. In particular, under domestic law, it was a criminal offence for a courier to forge a record of service.