[TRANSLATION]

...

THE FACTS

The applicant, Jürgen Schneider, is a German national who was born in 1964 and lives in Mannheim. He was represented before the Court by Mr Christoph Kunzmann, a lawyer practising in Mannheim.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 17 August 1991 the Kaiserslautern public prosecutor's office began a judicial investigation in respect of the applicant. On 22 June 1995 the indictment was received at the Kaiserslautern Regional Court. On 6 October 1997 the Regional Court convicted the applicant and sentenced him to four years and six months' imprisonment. On 14 May 1998 the Federal Court of Justice dismissed an appeal on points of law by the applicant. On 25 June 1998 the Federal Constitutional Court, sitting as a panel of three judges, decided not to entertain a constitutional appeal by the applicant.

The applicant served his sentence from 6 October 1997 to 5 October 2000.

COMPLAINT

The applicant submitted that the criminal proceedings against him, which had lasted six years and nine months, had not satisfied the reasonable-time requirement in Article 6 § 1 of the Convention.

PROCEDURE

The application was lodged with the European Commission of Human Rights (“the Commission”) on 14 October 1998.

On 28 September 2000 the Court decided to give notice of the application to the respondent Government, inviting them to submit written observations on its admissibility and merits. On 28 February 2001 the Court received the Government's observations. In a letter of 8 March 2001 the Court forwarded them to the applicant and invited him to submit written observations in reply by 23 April 2001. In a registered letter of 5 June 2001, sent with an acknowledgment of receipt form, the Court drew the applicant's attention to the fact that the time he had been allowed for submitting his observations had expired on 24 April 2001 and that no request for additional time had been made. The Court also referred the applicant to Article 37 § 1 (a) of the Convention. On 13 June 2001 the acknowledgment of receipt form, signed by the applicant's representative's law firm, arrived at the Court without any further information.

On 27 September 2001 the Court decided to strike the case out of its list. The Court's decision was sent to the applicant's representative at the time on 3 October 2001.

In a letter of 11 February 2004 the applicant's new representative requested the Court to resume its examination of the application.

THE LAW

The applicant submitted that, after repeatedly requesting information for months about the state of his application, he had not been informed of the Court's decision to strike it out of the list until 2 February 2004, when he had received a letter dated 13 January 2004. The letter had not been accompanied by any explanation and had been sent by the law firm where his former representative before the Court had worked. The applicant asserted that his former representative had told him in a letter of 18 December 1998 that the proceedings could take some time and that he would keep him informed of developments in the case. There had therefore been no need for him to request information on his own initiative about the state of proceedings. His former representative had, moreover, left the law firm without informing him. The applicant pointed out that he had been in prison and that, on being released, he had first had to deal with his private life, in particular his divorce.

The Court notes that it has struck the application out of the list in accordance with Article 37 § 1 (a) of the Convention. However, paragraph 2 of that Article provides:

“The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”

According to the settled case-law of the Court and the Commission, an application may be restored to the list of cases where the facts on which the striking-out decision was based are shown to be incorrect (see Skowroński v. Poland (dec.), no. 37609/97, 19 March 2002; Garcia Sanchez v. Spain, no. 37357/97, Commission decision of 1 July 1998; Meusburger v. Austria, no. 14699/89, Commission decision of 16 October 1996; and Ewing v. the United Kingdom, no. 11224/84, Commission decision of 18 October 1985, Decision and Reports (DR) 45, p. 269). The same is true where the applicant is able to prove that he sent his observations in reply but they never reached the Registry of the Court (see Rosenauer v. Austria (dec.), no. 38897/97, 21 February 2002), or that he never received correspondence from the Commission Secretariat for health reasons (see Z.M. v. Germany, no. 13770/88, Commission decision of 13 February 1990) or because of the death of his representative (see M. v. Italy, no. 13549/88, Commission decision of 25 February 1991, DR 69, p. 195).

In the instant case the Court notes that the applicant's former representative did not reply either to the Government's observations or to the reminder from the Registry which led to the application being struck out. The applicant alleged that his former lawyer had not informed him of the striking out and that he had first learned of it in February 2004, not through his former representative but through the firm where the representative had been working when the application had been lodged. The Court notes in this connection that the applicant maintained that for months he had repeatedly requested information on the matter.

While such circumstances are in principle capable of justifying the restoration of an application to the list, the Court considers that in the instant case the applicant has not sufficiently explained why he was unable to obtain information about the state of his application until three years after his release. The information provided by his former lawyer in 1998 to the effect that the proceedings before the Court could take some time cannot justify such a delay. The Court concludes that the applicant, who was released only a few days after its decision to communicate the application to the Government and was accordingly no longer in prison when the case was struck out of the list, failed to display the diligence that might have been expected of him in presenting his case before the Court.

For these reasons, the Court unanimously

Decides not to restore the application to its list.

SCHNEIDER v. GERMANY DECISION


SCHNEIDER v. GERMANY DECISION