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THE FACTS

The applicant, Mr Hugo Reuther, is a German national, who was born in 1939 and lives in Presseck (Germany). He was represented before the Court by Mr K.D. Deumeland.

A.  The circumstances of the case

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

On 7 December 1999 the Kulmbach District Court made a sentence order (Strafbefehl) against the applicant. In a decision of 19 June 2000, after the prosecution had revoked the sentence order, the District Court ruled that the costs necessarily incurred by the applicant were to be paid by the State. On 4 July 2000 the applicant’s representative, who also represented him before the Court, sought reimbursement of 1,916.32 German marks (DEM – approximately 950 euros (EUR)).

On 23 August 2000 the District Court dismissed the representative’s claim for failure to comply with Article 138 of the Code of Criminal Procedure (see “Relevant domestic law and practice” below) on the ground that he was not a lawyer admitted to practise at a German court and had not been authorised by the court to represent the applicant. The costs in question had therefore not been necessarily incurred within the meaning of Article 464 of the Code of Criminal Procedure. Furthermore, the applicant had merely claimed a lump sum, which could not be refunded.

On 5 September 2000 the Bayreuth Regional Court upheld the lower court’s decision. It added that the applicant’s representative could not be regarded as a professor or lecturer in law (Rechtslehrer) within the meaning of Article 138 § 1 of the Code of Criminal Procedure (see “Relevant domestic law and practice” below), since that provision did not apply to non-tenured lecturers (Lehrbeauftragte) at a higher-education establishment.

On 16 September 2000 the applicant lodged a constitutional appeal with the Bavarian Constitutional Court (Bayerischer Verfassungsgerichtshof) against the decisions in issue.

In a letter of 26 September 2000 the legal secretary (Rechtsreferentin) of the Bavarian Constitutional Court acknowledged receipt of the applicant’s appeal and asked his representative, among other things, to state whether he was a lawyer admitted to practise or a professor or lecturer in law at a university (Hochschule).

In a letter of 8 November 2000 the legal secretary informed the applicant of a number of obstacles that might prevent the appeal from being declared admissible and well-founded. She concluded that, for the reasons stated, the appeal appeared to be partly inadmissible and partly manifestly ill-founded (offensichtlich unbegründet). In such cases, the Constitutional Court could order appellants to pay a certain sum (a maximum of DEM 3,000 – approximately EUR 1,500) before it continued its examination of the appeal, the aim being to avoid unnecessary expense for those concerned. The legal secretary gave the applicant one month to reply, failing which the case would be deemed to have been settled.

The applicant replied on 4 December 2000.

In a decision of 15 January 2001 the Bavarian Constitutional Court, sitting as a panel of three judges, ordered the applicant to pay DEM 1,500 by way of an advance for costs (Kostenvorschuss). The decision was accompanied by a short letter from the legal secretary explaining, in particular, that it had been taken pursuant to section 27(1) of the Bavarian Constitutional Court Act and that the appeal was therefore regarded as inadmissible or manifestly ill-founded.

In a letter of 23 January 2001 the applicant contended that the decision should have contained a statement of reasons.

On 30 January 2001 the legal secretary replied that decisions on orders for costs did not require a statement of reasons. She drew attention to her letter of 8 November 2000 and sent him a copy of the entire file so that he could consult it as he had requested.

The applicant did not pay the sum demanded.

B.  Relevant domestic law and practice

1.  The Code of Criminal Procedure

Article 138 § 1 of the Code of Criminal Procedure (Strafprozessordnung) provides that defendants may choose as their counsel any lawyer admitted to practise at a German court or a professor or lecturer in law (Rechtslehrer) at a German university (Hochschule). Article 138 § 2 provides, inter alia, that other persons may be authorised to act as counsel by the court dealing with the case.

In practice, neither professors or lecturers in law at a university of applied sciences (Fachhochschule) nor non-tenured lecturers (Lehrbeauftragte) at a higher-education establishment are regarded as “professors or lecturers in law” within the meaning of this provision. In two recent decisions of 5 May 1999 (no. 1 Ws 121/99) and 3 May 2000 (no. 1 Ws 94/00) the Jena and Dresden Courts of Appeal (Oberlandesgericht) held respectively that a professor of law attached to a university of applied sciences and a non-tenured law lecturer were entitled to be regarded as professors or lecturers within the meaning of Article 138 § 1 of the Code of Criminal Procedure.

2.  The Bavarian Constitutional Court Act

Section 11 of the Bavarian Constitutional Court Act (Gesetz über den Bayerischen Verfassungsgerichtshof) of 10 May 1990 provides that the President appoints a secretary-general from among the court’s professional judges. The secretary-general’s role is to assist the President in carrying out his duties and with administrative tasks.

Section 12(1) provides that when the Constitutional Court is not in session, its powers are assumed by the President or are delegated by him to the secretary-general. The secretary-general may, for example, be instructed to take the necessary procedural steps for the preparation of sessions and to carry out administrative duties.

Section 12(3) provides, inter alia, that the President appoints a person to represent the secretary-general in discharging non-judicial duties.

In practice, this person is known as the legal secretary (Referent) of the Bavarian Constitutional Court.

COMPLAINTS

1.  The applicant complained of the unfairness of the proceedings before the Kulmbach District Court and the Bayreuth Regional Court. In particular, he complained of his unjustified sentence and of the courts’ refusal to allow him to consult the file on his case and to refund the costs he had incurred. Lastly, he alleged that the national courts had taken him for an imbecile. He relied on Article 3 and Article 6 § 1 of the Convention and on Article 1 of Protocol No. 1.

2.  With regard to the proceedings in the Bavarian Constitutional Court, the applicant argued that the decision on the advance for costs should have contained a statement of reasons, that the sum demanded (DEM 1,500) had been excessive and arbitrary given that the proceedings in issue had concerned a sum of DEM 1,916.32, and that the requirement to pay the sum had infringed his right of access to a court. He also complained about the composition of the Constitutional Court. He relied on Article 6 § 1 and Article 13 of the Convention and pointed out that it had not been possible for him to appeal to the Federal Constitutional Court (Bundesverfassungsgericht) as he could not have alleged a breach of Bavarian legislation before that court, such an issue falling solely within the jurisdiction of the Bavarian Constitutional Court.

THE LAW

1.  The applicant submitted that the proceedings in the criminal courts had not been fair. He complained, in particular, that they had refused to refund the costs necessarily incurred in presenting his case. He relied, inter alia, on Article 6 § 1 of the Convention, the relevant part of which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

The Court notes that the criminal courts refused to refund the applicant’s costs on the ground that his representative did not satisfy the requirements of Article 138 of the Code of Criminal Procedure as he was not a practising lawyer and had not been authorised by them to act as counsel (see “Relevant domestic law and practice” above). The question therefore arises whether the proceedings in issue concerned the determination of the applicant’s civil rights and obligations within the meaning of Article 6 § 1 of the Convention.

However, the Court is not required to rule on the applicability of this provision in the instant case, since the application must be rejected for other reasons. It points out that Article 35 § 1 of the Convention provides:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

The Court notes that the applicant’s complaints before it were also raised before the Bavarian Constitutional Court. It observes that that court, in its decision of 15 January 2001, ordered the applicant to pay DEM 1,500 (approximately EUR 750) by way of an advance for costs before it adjudicated on his appeal. In the Court’s view, by refusing to pay that sum the applicant prevented the Constitutional Court from examining his complaints and accordingly failed to exhaust the remedies available in German law as required by Article 35 § 1 of the Convention. In that connection, the Court considers that the letters from the legal secretary of the Bavarian Constitutional Court informing the applicant of the obstacles likely to prevent his constitutional appeal from being declared admissible or well-founded cannot be regarded as a decision of that court effectively dispensing him from having to seek a formal decision from it. The legal secretary of the Bavarian Constitutional Court does not sit on the panel of judges but has the task of assisting the court’s secretary-general with administrative duties, in accordance with section 12(3) of the Bavarian Constitutional Court Act (see “Relevant domestic law and practice” above).

It follows that this part of the application must be rejected for failure to exhaust domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

2.  In so far as the applicant submitted that the costs he had been required to pay had been excessive and had consequently infringed his right of access to a court under Article 6 § 1 of the Convention, the Court reiterates that although this provision secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court, the “right to a court” is not absolute but is subject to limitations permitted by implication, which may also be financial in nature (see, as the most recent authority, Kreuz v. Poland, no. 28249/95, §§ 54-60, ECHR 2001-VI). Indeed, it has never ruled out the possibility that the interests of the fair administration of justice may justify imposing a financial restriction on an individual’s access to a court (see Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, Series A no. 316-B, pp. 80-81, §§ 61 et seq.).

The Court therefore concludes that the requirement to pay a specified sum to the Bavarian Constitutional Court cannot be regarded as a restriction on the right of access to a court that is in itself incompatible with Article 6 § 1 of the Convention.

With regard to the costs which the applicant was ordered to pay, the Court considers that they cannot be regarded as excessive (see, among other authorities, Müller v. Switzerland, nos. 22335/93, 23855/94, 24101/94 and 24440/94, Commission decisions of 17 May 1995).

It follows that this complaint is manifestly ill-founded and must be dismissed pursuant to Article 35 §§ 3 and 4 of the Convention.

Accordingly, it is not necessary to determine whether, before applying to the Court, the applicant should have brought his complaints before the Federal Constitutional Court.

For these reasons, the Court unanimously

Declares the application inadmissible.

REUTHER v. GERMANY DECISION


REUTHER v. GERMANY DECISION