ABSTRACT
Mr Hans-Dieter Hennings had an altercation with a ticket collector on 15 April 1984. The Railway Police questioned the applicant about the incident. In a standard-form letter of 9 August 1984, the public prosecutor’s office informed the applicant of the offence and in accordance with the Criminal Code stated that proceedings would not be brought against him if he paid a fine of DM 300 by 1 October 1984. A form to be returned by 20 September 1984 was enclosed for the purpose of consenting to this method of settlement which would result in the termination of the proceedings without further notice. As the applicant did not return the consent form or pay the fine, he was issued with a penal order by the District Court on 7 November 1984 in accordance with a summary procedure. He was sentenced to a fine of DM 40 per day for 25 days for coercion and for the further offence of dangerous assault, which was not mentioned in the letter of 9 August 1984. As no objection had been lodged by the applicant within the one week time limit then prescribed by law and explicitly mentioned in the penal order, it acquired legal force as the final judgment in the matter on 20 November 1984. An application for the reinstatement of the proceedings against the penal order was submitted by the applicant’s lawyer and received by the Rosenheim District Court on 27 November 1984 out of time. The applicant’s request for reinstatement was dismissed by the District Court and the applicant was ordered to pay the costs. The Regional Court dismissed the applicant’s appeal on 24 January 1985 and ordered him to pay the costs. On 17 October 1985, due to its lack of prospects of success, the Federal Constitutional Court rejected the applicant’s appeal against the refusal of reinstatement. The applicant complained about the short time limit for filing an objection against the penal order and that it was not served on him personally. Comm found by majority (9-4) NV 6(1), (12-1) NV 14+6,
The guarantees contained in A 6(3) were constituent elements of the general notion of a fair trial. In the circumstances of the case, the complaint should be examined under 6(1). The applicant could reasonably have been expected to obtain a key to his letter-box in order to have ready access to any mail addressed to him, particularly since he must have foreseen that proceedings would be brought against him as a result of his failure to reply to the letter of 9 August 1984 from the public prosecutor’s office. The authorities could not be held responsible for barring his access to a court because he failed to take the necessary steps to ensure receipt of his mail and was thereby unable to comply with the requisite time limits laid down under German law. Whilst the time limit of one week for lodging an objection following service of the penal order was short, especially where a new offence had been alleged, it had to be borne in mind that the applicant still had the possibility of seeking reinstatement of the proceedings. Such a request had to be granted if there has been no fault on the part of the person concerned. However, the applicant failed to lodge even this request in time. It could not be said that the applicant was denied his right of access to a court. Accordingly, there had been no violation of A 6(1). The applicant did not pursue his claim of violation of A 14 and 6 before the Court. The Court did not have jurisdiction to examine it and considered that it was subsumed in the general complaint that he was denied access to court.
