CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 mars 1987

.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 }                    AS TO THE ADMISSIBILITY OF                     Application No. 11728/85                   by R.H.                   against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 2 March 1987, the following members being present:                 MM. C. A. NØRGAARD, President                   J. A. FROWEIN                   S. TRECHSEL                   B. KIERNAN                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   H. VANDENBERGHE                   F. MARTINEZ                 Mr.   H. C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 15 July 1985 by R.H. against the Federal Republic of Germany and registered on 19 August 1985 under file No. 11728/85;           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 applicant, a German citizen born in 1922, is a businessman resident in Hamburg.           The applicant introduced a previous application before the Commission in 1974 in which he complained of criminal proceedings instituted against him for organising an unlicensed lottery.   On 13 March 1975 the Commission declared this application (No. 6704/74) inadmissible.           In 1978 the applicant introduced another application (No. 8426/78) before the Commission.   He complained, inter alia, that his proposed candidature for the election of the Hamburg Land Parliament (Bürgerschaft) on 4 June 1978 was not admitted and that his challenge of the election was rejected.   This application was declared inadmissible by the Commission on 9 July 1980.           In 1982 the applicant again intended to stand for the elections of the Hamburg Land Parliament which were to take place on 6 June and 19 December 1982.   In order to obtain the five hundred signatures of voters required by the relevant legislation in Hamburg in support of his candidature, the applicant requested the Hamburg authorities to circulate or display in the Hamburg prisons publications and the official forms which voters have to sign in support of a candidature in elections.   Apparently this request had been granted for the elections on 6 June 1982.   However, for the elections taking place on 19 December 1982, the applicant's request was rejected.           On 8 November 1982 and 15 January 1983 the applicant challenged the validity of the elections of 19 December 1982 before the Hamburg Land Parliament on the ground, inter alia, that he was prevented from collecting, in the Hamburg prisons, the five hundred signatures in support of his candidature.           On 4 May 1983 the Hamburg Land Parliament rejected the applicant's challenge.   His appeal was dismissed on 30 November 1983 by the Hamburg Constitutional Court (Hamburgisches Verfassungsgericht).           The applicant's constitutional complaint was dismissed by the Federal Constitutional Court (Bundesverfassungsgericht) on 15 January 1985, partly as being inadmissible and partly as lacking prospects of success.           Apparently in 1986 the applicant again requested to have publications and the official forms for signatures in support of his candidature for the elections of the Hamburg Land Parliament on 9 November 1986 circulated in the Hamburg prisons.   This request was rejected by the Hamburg authorities.   However, upon the applicant's application for a provisional ruling, on 25 September 1986 the Hamburg Administrative Court of Appeal (Oberverwaltungsgericht) ordered the Hamburg authorities to display in each of the Hamburg prisons at a place accessible to detainees up to two hundred copies of the official form provided for signatures in support of the applicant's candidature as well as up to twenty copies of a publication by the applicant.   COMPLAINT           The applicant complains that he was prevented from collecting, in the Hamburg prisons, the necessary number of signatures required in support of a candidature and that consequently he could not stand as a candidate in the elections on 19 December 1982.   He invokes Article 3 of Protocol No. 1 to the Convention.   THE LAW           The applicant complains that he was prevented from collecting the five hundred signatures required in support of his candidature as the authorities refused to circulate or display his publications and the official forms in the Hamburg prisons.           It is true that Article 3 of Protocol No. 1 (P1-3) secures the right to free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.   This provision guarantees in principle the right to vote and the right to stand as a candidate at the election of the legislative body (see Nos. 6745/74 and 6746/74, Dec. 30.5.75, D.R. 2 p. 110, 116 and Nos. 8348/78 and 8406/78, Dec. 11.10.79, D.R. 18, 187, 196).            In the present case, it may appear doubtful whether the applicant exhausted the remedies available to him under German law in accordance with Article 26 (Art. 26) of the Convention, as he did not apply to the administrative courts for an injunction before or after having been informed of the decision of the authorities not to grant his request for circulation or display of publications and forms, and before the elections actually took place on 19 December 1982.           In this respect, the Commission notes in particular that the applicant, when his corresponding request concerning the elections on 9 November 1986 was rejected, in fact applied to the Administrative Court and that he eventually obtained an order in his favour before the Administrative Court of Appeal.   The applicant has not shown that it was impossible or inappropriate for him to seek a similar order from the Admnistrative Courts before the election of 19 December 1982.           However, the Commission does not find it necessary to make a finding on this issue as the application is in any event manifestly ill-founded.           The Commission recalls that the right guaranteed, in principle, by Article 3 of Protocol No. 1 (P1-3) to vote and to stand for election to the legislature is neither absolute nor without limitations.   As the Commission has already held, States may impose certain restrictions on this right, provided that they are not arbitrary and do not interfere with the free expression of the people's opinion (Nos. 6745/74 and 6746/74, Dec. 30.5.75, D.R. 2 pp. 110, 116).           As regards the refusal by the Hamburg authorities to grant the applicant's request, the Commission concedes that although under German law prisoners do not generally or automatically lose their right to vote (see S. 45 para. 5 of the Criminal Code - Strafgesetzbuch) the circulation of publications by political groups or candidates or their display may indeed adversely affect the order in penal institutions.   Furthermore, the Commission notes that the applicant does not allege that other candidates or political parties were allowed to circulate publications in the Hamburg prisons or have them circulated or displayed there or to collect signatures in the prisons.           Under these circumstances, the Commission cannot find that the restrictions imposed on the applicant's candidature were unreasonable or arbitrary or that they were likely to interfere with the free expression of the opinion of the people in the choice of the legislature.           It follows that the application is in any event manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission            President of the Commission               (H.C. KRÜGER)                             (C.A. NØRGAARD)