THE FACTS

Whereas the facts presented by the applicant may be summarised as
follows:

The applicant is a German citizen, born in 1943 and living in B. where
he is a student of the Free University. He is represented by Messrs.
E., M. and S., lawyers practising in B..

By order (Strafbefehl) of 27 March 1969 the District Court (Amtsgericht
) T. in B. imposed a summary penalty of two months imprisonment on the
applicant. According to the Court's findings the applicant had
disturbed the domestic peace and security (Hausfriedensbruch) by
breaking, with other students, into the office of the President
(Rektor) of the University. The Court decided that the execution of the
penalty should be suspended on probation.

The order was given without an oral hearing on request of the Public
Prosecutor and served on the applicant on 9 April 1969 by way of
deposition at the post office. According to the German Code of Criminal
Procedure an appeal (Einspruch) against an order inflicting a summary
penalty has to be lodged within a week after service.

The applicant lodged an appeal by letter of 16 April 1969 which was
received by the Court one day later. His defence counsel filed a brief
on 18 April 1969, which arrived on 19 April 1969, requesting the Court
to declare the appeal admissible although out of time
(Wiedereinsetzungsgesuch). They stated that the applicant was on
vacation in the Black Forest from 6 March to 14 April 1969 and had made
no arrangement to have his mail delivered there. When he came home to
B. and found the notice informing him of the deposition of the Court
order at the post office he thought the document would be considered
to have been served on him on the day when he would pick it up at the
post office. Furthermore he had read an article in a newspaper about
a decision of the Federal Constitutional Court
(Bundesverfassungsgericht) according to which a person who unknowingly
failed to lodge an appeal against a summary penalty which was served
on him while he was on vacation should be given permission to lodge the
appeal out of time within a week after his return.

By decision of .. May 1969, the District Court T. in B. refused to
grant the applicant permission to lodge his appeal out of time. The
Court pointed out that according to Article 44 of the Code of Criminal
Procedure such permission can only be granted if the applicant was
prevented from lodging the appeal in time by circumstances beyond his
control. It found that such circumstances did not exist in the case of
the applicant, because he received notice of the deposition of the
court order within the time-limit allowed and could have lodged the
appeal in time on 15 April 1969. The Court found that the applicant was
not excused by the newspaper report on a decision of the Federal
Constitutional Court, because, according to this decision, the
permission to lodge an appeal out of time is to be given only if the
applicant gets notice of the deposition of the order imposing a penalty
judgment on him after the delay for the appeal has elapsed.

The applicant made a further appeal (sofortige Beschwerde) against the
decision of the District Court alleging a violation of his right to be
heard and to defend his case in court (rechtliches GehoĢˆr). He referred
to another decision of the Federal Constitutional Court according to
which the courts should not be too strict in deciding whether or not
an applicant had valid excuses for having failed to lodge an appeal
against an order inflicting a summary penalty, on time.

However, the Regional Court (Landgericht) in B. rejected this appeal
on .. July 1969, stating that the grounds given in the District Court's
decision were correct.

The applicant alleges that the refusal of the B. courts to admit his
appeal against the order of 27 March 1969 violates Article 6 (1) and
(3) (b) of the Convention. He points out that the order inflicting a
summary penalty upon him was given without an oral hearing. He is of
the opinion that he had offered reasonable excuses for his failure to
lodge the appeal in time because laymen generally believe that a
service is not effected solely by deposition at the post office, but
by the fact that the person to whom the deposited letter is addressed
picks it up at the post office.

Furthermore, he maintains that the newspaper report concerning the
decision of the Federal Constitutional Court, could have been
interpreted by laymen to the effect that, in each case where a person
absent on vacation has been served, by way of deposition at the post
office, an order inflicting a summary penalty, the delay for lodging
an appeal against such an order takes effect from the day on which the
person returns home.

He points out that the strict and formalistic attitude of the B. courts
leads to unreasonable consequences insofar as persons who come home
from vacation on the last day of the periods during which the appeal
has to be lodged, have to file the appeal immediately or are otherwise
deprived of a fair trial, while others who come home later have a whole
week to consider whether or not to apply for permission to lodge the
appeal out of time.

THE LAW

Whereas, in regard to the applicant's complaint that he could not
defend his case in court because the summary penalty was imposed on him
without an oral hearing and because his appeal was not admitted by the
courts, the Commission first notes that according to German law an
accused person is never obliged to accept an order imposing a summary
penalty on him since he can lodge an appeal asking what the same court
which has fixed the summary penalty should examine his case in a normal
trial with an oral hearing;

Whereas it follows that such summary penalty proceedings do not
conflict with Article 6 (1) (Art. 6-1) of the Convention;

Whereas, furthermore, the Commission notes that, according to Article
163 (a), paragraph (1), of the German Code of Criminal Procedure, the
prosecution has always to examine the accused before moving for an
order imposing summary penalty; whereas it is thereby guaranteed that
an accused is never taken by surprise;

Whereas the Commission finds that in the present case the refusal of
the courts to admit the applicant's appeal is the fault of the
applicant himself since, although he must have known of the criminal
proceedings instituted against him, he had made no arrangements to have
his mail forwarded to him and he had failed to lodge the appeal
immediately after he had collected from the post office the letter
containing the court order; whereas, under these circumstances, an
examination of the case does not disclose any appearance of a violation
of the rights and freedoms set forth in the Convention and, in
particular, in Article 6 (1) and (3) (b) (Art. 6-1, 6-3-b) of the
Convention;

Whereas it follows that the application is manifestly ill-founded
within the meaning of Article 27, paragraph (2) (Art. 27-2), of the
Convention;

Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE