CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 juillet 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }    The European Commission of Human Rights sitting in private on 18 July 1986 the following members being present:                     MM   C.A. NØRGAARD, President                       F. ERMACORA                       G. TENEKIDES                       S. TRECHSEL                       B. KIERNAN                       A. WEITZEL                       J.C. SOYER                       H.G. SCHERMERS                       H. DANELIUS                       G. BATLINER                   Sir Basil HALL             Mr H.C. KRÜGER, Secretary to the Commission   Having regard to Article 25 (art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;   Having regard to the application introduced on 24 June 1985 by C.S. against the Federal Republic of Germany and registered on 3 January 1986 under file No. 11913/86;   Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;   Having deliberated;   Decides as follows:   THE FACTS   The facts of the case as submitted by the applicant may be summarised as follows:   The applicant is a German citizen, born in 1953 and residing at Bonn.   He complains of the Federal Government's consent to the deployment of Pershing II missiles in the Federal Republic of Germany.   His constitutional complaint (Verfassungsbeschwerde) was on 20 February 1985 declared inadmissible by the Federal Constitutional Court (Bundesverfassungsgericht) on the ground that it was not substantiated by submissions referring to basic rights (grundrechtsbezogene Darlegungen) as required by Article 92 of the Act on the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz).   COMPLAINTS   The applicant invokes the Preamble and Articles 1, 2, 5, 6 and 17 (art. 1, art. 2, art. 5, art. 6, art. 17) of the Convention.   THE LAW   The applicant complains of the Federal Government's consent to the deployment of Pershing II missiles in the Federal Government of Germany.   However, the Commission is not required to decide whether this consent violated any of the provisions of the Convention invoked by the applicant as, under Article 26 (art. 26), it may only deal with a 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.   As regards exhaustion of domestic remedies, the mere fact that the applicant has brought a constitutional complaint does not of itself constitute compliance with this rule.   It is also required that he has observed the form prescribed by German law for such complaints (cf. mutatis mutandis No. 6878/75, Dec. 6.10.76, D.R. 6 pp. 79, 88). However, the Federal Constitutional Court declared the applicant's constitutional appeal inadmissible on the ground that it was not substantiated by submissions referring to basic rights as required by Article 92 of the Act on the Federal Constitutional Court.   It follows that the applicant has failed to exhaust this domestic remedy.   The Commission has nevertheless examined whether, according to the generally recognised rules of international law, the applicant was absolved from bringing a constitutional complaint, on the ground that it would have had no chance of success (cf. No. 8544/79, Dec. 15.12.81, D.R. 26 pp. 55, 69).   It here notes that the Federal Constitutional Court, in its decision of 16 December 1983 (BVerfGE 66, 39 = EuGRZ 1984, 39), dismissed 17 constitutional complaints concerning the deployment of Pershing II missiles and that, in a judgment of 18 December 1984 (BVerfGE 68, 1 = EuGRZ 1984, 593), it dismissed an application by the parliamentary group of the Green Party concerning the same matter.   The Commission has not considered it necessary to decide whether, in view of the above decisions, the applicant was absolved from bringing a constitutional complaint as it finds that he has in any case failed to comply with Article 26 (art. 26) of the Convention, either because he did not exhaust domestic remedies, in accordance with the generally recognised rules of international law, or because he did not observe the six months' rule.   If the applicant was required to bring a constitutional complaint in order to exhaust domestic remedies he has, as already stated, failed to do so because his constitutional complaint did not comply with Article 92 of the Act on the Federal Constitutional Court.   If, on the other hand, the constitutional complaint was not a remedy to be exhausted in the present case the application is out of time because the Federal Constitutional Court's decision of 20 February 1985 on the applicant's constitutional complaint cannot then be taken into consideration for the purpose of calculating the six months' time limit laid down in Article 26 (art. 26) and the Federal Government's decision complained of must be considered as the "final decision" for the purpose of this provision (cf. mutatis mutandis No. 7379/76, Dec. 10.12.76, D.R. 8 p. 211).   It follows from the Federal Constitutional Court's above decision of 16 December 1983 that the Federal Government's decision complained of in the present case, i.e. its consent to the deployment of Pershing II missiles, was given before 16 December 1983.   The present application was introduced more than six months later, namely on 24 June 1985.   The application must therefore be rejected under Article 27 para. 3 (art. 27-3) read in conjunction with Article 26 (art. 26) of the Convention, either for non-exhaustion of domestic remedies or for non-observance of the six months' rule.   For these reasons, the Commission   DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission            President of the Commission   (H.C. KRÜGER)                          (C.A. NØRGAARD)