In Marcus Brauer v. Germany, the European Court of Human Rights held Germany in violation of article 6 ECHR (right to a fair trial)
The applicant had damaged numerous cars in a parking lot with a hammer and had been confined to a psychiatric hospital pending trial. In the trial, the regional court came to the conclusion that the applicant could not be held criminally responsible for his actions and ordered his confinement in a psychiatric hospital. When confronted with the judgment, the applicant became very agitated. He stated that he did not want to be represented by his ex-officio lawyer anymore and that he wanted to appeal the judgment.
The presiding judge informed the applicant that he could not file an appeal on the spot. He also informed him how and within which time limit he could submit an appeal.
The applicant was taken to a psychiatric hospital, where he calmed down.
The attorney who had represented the applicant wrote him a letter. He stated that he respected the applicant’s wish not to be represented by him anymore. The attorney added that was aware that the applicant intended to appeal the judgment. He provided advice on the time limit for appeal, on the court with which to file the note of appeal and the form to be respected.
Since the attorney’s letter was drafted in slightly ambiguous language, the applicant sent the note of appeal to the wrong court. This court forwarded it to the competent court, but this court received it after the deadline for appeals had expired.
The applicant, represented by counsel again, requested a reinstatement. According to German law, a person who has missed the deadline for an appeal (or another time-bound action) can be granted a reinstatement, provided the failure to observe the deadline was not attributable to him. If reinstatement is granted, the person can still submit the appeal. The applicant stated that the information provided by his counsel on how to file the appeal had been unclear. Therefore, he was not responsible for submitting it to the wrong court, which had caused the delay and resulted in his missing the deadline. He also submitted he had been too agitated to understand the explanation given by the presiding judge of the regional court when judgement had been given in first instance.
The Federal Court of Justice rejected the applicant’s request for reinstatement. It stated that it did not matter whether the advice provided by counsel on how to file an appeal had been sufficiently clear. At any rate, the explanation by the presiding judge following the judgment at the regional court had been sufficiently clear. Therefore, it was the applicant’s fault that he had missed the deadline.
The European Court of Human Rights held that this decision violated the applicant’s right to a fair trial.
The Court pointed out that article 6 ECHR enshrined the right to access to a court. That right was not granted absolutely; restrictions such as deadlines, formal requirements for filings or court fees were in principle permissible. However, they had to serve a legitimate aim, to be proportionate and must not touch upon the essence of the right of access to a court.
The European Court of Human Rights found that the German Federal Court of Justice had restricted the applicant’s right of access to a court more than permissible under the Convention when denying the motion for reinstatement.
It pointed out that the applicant, who had already been confined to a psychiatric hospital at the time of the judgement of the regional court, had been in a particularly vulnerable position. The Court also underscored that the Federal Court of Justice had been aware that the applicant had been in a state of distress when the presiding judge had advised him on the way to file an appeal.
The Court also considered important that the applicant’s defence lawyer had informed the applicant that the respected his wish not to represent him anymore, although ex-officio lawyers can only be released from their duties by judicial decision.
In view of these factors, the applicant’s responsibility for missing the deadline had been reduced and it had not been justified to deny him access to a second instance.