CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 24 juin 1996

.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. 29357/95                       by Gabriele GAST, Dieter POPP                       and Horst TISCHLER                       against Germany        The European Commission of Human Rights sitting in private on 24 June 1996, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS              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 1 May 1995 by Gabriele GAST, Dieter POPP and Horst TISCHLER against Germany and registered on 23 November 1995 under file No. 29357/95;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The first applicant, born in 1943, is a German national and resident in Neuried.   She is a political scientist by profession.        The second applicant, born in 1939, is a German national and resident in Bonn.   He is an insurance agent by profession.        The third applicant, born in 1941, is a German national and resident in Munich.   He is an administrative consultant by profession.     A.    Particular circumstances of the case        The facts of the case, as they have been submitted by the applicants, may be summarised as follows.   I.    The first applicant        In 1990 criminal proceedings were initiated against the first applicant on suspicion of having committed espionage (geheimdienstliche Agententätigkeit).   On 30 September 1990 the first applicant was arrested and taken into detention on remand on 1 October 1990.        The trial against the first applicant and three co-accused was held before the Bavarian Court of Appeal (Oberlandesgericht) sitting as a court of first instance on several days in November and December 1991.   In these and the following proceedings, the first applicant was assisted by defence counsel.        On 19 December 1991 the Court of Appeal convicted the first applicant and the co-accused of espionage on behalf of the former German Democratic Republic, pursuant to S. 99 para. 1 (1) of the German Penal Code (Strafgesetzbuch).   The first applicant was sentenced to six years and nine months' imprisonment.   The first applicant was also, for a period of four years, deprived of the rights to hold a public office, to vote and to be elected.   The co-accused were sentenced to two years', one year and six months' and one year's imprisonment on probation, respectively.        The Court found that in 1968, in the course of her studies and research for her thesis in political science, the first applicant had been contacted by agents of the Ministry for State Security (Ministerium für Staats-Sicherheit), the secret service of the former German Democratic Republic.   On the occasion of a meeting in the east sector of Berlin at the end of 1968 or in the beginning of 1969, she had agreed to work for the Ministry concerned.   She had kept the Ministry informed about her work at a research institute between July 1972 and June 1973.   Subsequently, upon her employment by the Federal Intelligence Service (Bundesnachrichtendienst), she had forwarded secret information such as reports prepared by German embassies and in particular reports prepared by the Intelligence Service itself to the secret service of the former German Democratic Republic. The first co- accused, living in Munich, had operated as courier, the two further co- accused had been secret agents of the secret service of the former German Democratic Republic and had also been living there.        The Court of Appeal found that the first applicant and the co- accused had thereby committed espionage.   As regards the co-accused, the Court, referring to a decision of the Federal Court of Justice (Bundesgerichtshof) of 29 May 1991, observed that there was no legal impediment to punishing them. However, the fact that their prosecution had only been possible following the German unification had to be regarded as a mitigating circumstance.        In fixing the first applicant's sentence, the Court of Appeal regarded as mitigating circumstances in particular that she had no criminal record, had a regular life and had also shown helpfulness in taking care of a handicapped child.   She had got involved in her criminal conduct due to her relationship with one of the co-accused and she had not managed to discontinue her contacts with the secret service of the former German Democratic Republic.   Moreover, due to a lack of adequate controls, she had no particular difficulties in obtaining and forwarding the information concerned.   Moreover, she had not obtained any financial advantages, but she would suffer serious professional disadvantages as a consequence of her conviction.   Finally the Court of Appeal took into account that the first applicant had largely admitted her guilt.   However, in view of the aggravating circumstances, in particular the lengthy period of the first applicant's involvement in espionage as well as the volume of secret information forwarded, the Court of Appeal regarded a prison sentence of six years and nine months as appropriate.        On 24 June 1992 the Third Senate of the Federal Court of Justice, sitting with five judges, dismissed the first applicant's appeal on points of law (Revision).        On 23 May 1995 a panel of three judges of the Second Senate of the Federal Constitutional Court (Bundesverfassungsgericht) refused to admit the first applicant's constitutional complaint (Verfassungsbeschwerde) of 18 July 1992 about her conviction of espionage.   The Constitutional Court referred to SS. 93a and 93b of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz) and to a decision of the Second Senate of 15 May 1995 (2 BvL 19/91 and others), which was attached to its decision in the first applicant's case.   The first applicant received this decision on 9 June 1995.   II.   The second applicant        In 1990 the criminal proceedings were initiated against the second applicant on the suspicion of having committed espionage.   On 14 May 1990 the second applicant was arrested and taken into detention on remand.        The trial against the second applicant and one co-accused was held before the Düsseldorf Court of Appeal sitting as a court of first instance on several days in December 1991.   In these and the following proceedings, the second applicant was assisted by defence counsel.        On 23 December 1991 the Court of Appeal convicted the second applicant and the co-accused of espionage on behalf of the former German Democratic Republic, pursuant to S. 99 para. 1 (1) and para. 2, first sentence, of the Penal Code.   The second applicant was sentenced to six years' imprisonment.   The second applicant was also, for a period of four years, deprived of the rights to hold a public office, to vote and to be elected.   The forfeiture of a sum of money amounting to DM 70,000 was ordered.   The co-accused was sentenced to two years' imprisonment on probation, and he was, for a period of two years, deprived of the rights to hold a public office, to vote and to be elected.        The Court of Appeal found that in the second half of the sixties the second applicant had been contacted by agents of the Ministry for State Security. At the latest in 1969, he had agreed to work for the Ministry in question. The co-accused had acted as contact agent (Führungsoffizier).   The applicant had incited his friend to commit espionage on behalf of the former German Democratic Republic.   His friend, who had died in 1989, had worked for the Federal Ministry of Defence and had had access to secret, and partly top secret, information.   The applicant's friend had partly taken copies of secret documents, or originals thereof, home where the originals were photographed; copies and films had subsequently been forwarded by the second applicant to the co-accused.        The Court of Appeal observed that the second applicant and the co-accused had thereby committed espionage within the meaning of S. 99 of the Penal Code which had been punishable at the time of their offences and had remained punishable following the accession of the former German Democratic Republic to the Federal Republic of Germany, as regulated in the German Unification Act (Gesetz zu dem Vertrag vom 31. August 1990 zwischen der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik über die Herstellung der Einheit Deutschlands) of 23 September 1990.   As regards the second applicant, the Court noted that he had acted as citizen of the Federal Republic of Germany against his own country.   There was no appearance of a violation of his right to equal treatment.   In particular, the German legislator was not obliged to enact legislation granting an amnesty or to limit the application of the provisions on espionage and treason. Finally, he could not be compared to secret agents of the Federal Intelligence Service who, irrespective of the different goals of the secret services concerned, acted on behalf of their own country and not against it.   As regards the co-accused, the Court, referring to a decision of the Federal Court of Justice of 29 May 1991, observed that there were no rules of public international law prohibiting a State from punishing foreigners having committed espionage abroad.   Moreover, taking into account the different goals of the Federal Intelligence Service and the secret service of the former German Democratic Republic, his prosecution for espionage did not amount to discrimination against him, and the secret agents of the former German Democratic Republic could not have any legitimate expectation not to be punished for their conduct following the accession of the former German Democratic Republic to the Federal Republic of Germany.        In fixing the second applicant's sentence, the Court of Appeal regarded as mitigating circumstances in particular that he had no criminal record, had a regular life and had committed espionage not primarily for financial purposes, but had pursued political ideas. However, in view of the aggravating circumstances, in particular the lengthy period of the second applicant's involvement in espionage, the involvement of his late friend, the kind of secret information forwarded as well as reasons of general crime prevention, the Court of Appeal regarded a prison sentence of six years and nine months as appropriate.   As regards the co-accused, the Court of Appeal took his situation as citizen of the former German Democratic Republic and secret agent acting from that territory into account.        On 22 July 1992 the Third Senate of the Federal Court of Justice, sitting with five judges, dismissed the second applicant's appeal on points of law.        On 23 May 1995 a panel of three judges of the Second Senate of the Federal Constitutional Court refused to admit the second applicant's constitutional complaint of 13 August 1992 about his conviction of espionage.   The Constitutional Court referred to SS. 93a and 93b of the Federal Constitutional Court Act and to a decision of the Second Senate of 15 May 1995 (2 BvL 19/91 and others), which was attached to its decision in the second applicant's case.   The second applicant's counsel received this decision on 3 June 1995, the second applicant himself on 21 June 1995.   III. The third applicant        Apparently in 1992 criminal proceedings were initiated against the third applicant on the suspicion of having committed espionage. He was heard on the charges against him on 28 April 1992.        The trial against the third applicant was held before the Bavarian Court of Appeal sitting as a court of first instance on several days in February 1994.   In these and the following proceedings, the third applicant was assisted by defence counsel.        On 11 February 1994 the Court of Appeal convicted the third applicant of espionage on behalf of the former German Democratic Republic, pursuant to S. 99 para. 1 (1) of the Penal Code.   The third applicant was sentenced to one year's imprisonment on probation.   He was also, for a period of three years, deprived of the rights to hold a public office, to vote and to be elected.   The forfeiture of a sum of money amounting to DM 20,000 was ordered.        The Court of Appeal found that in 1974 the third applicant, member of a political party, i.e. the CSU, had been contacted by an agent of the Ministry for State Security.   Approximately in the beginning of 1975, he had agreed to work for the Ministry in question and to forward information on the CSU and its working committees.   He also forwarded information on members of a Munich private association.        The Court of Appeal observed that the third applicant had thereby committed espionage within the meaning of S. 99 of the Penal Code. The applicant's espionage was directed against the Federal Republic to the extent that a political party in the Federal Republic of Germany was spied on and that further contacts with Federal citizens by secret agents of the former German Democratic Republic were prepared. Moreover, the results of exploring a political party such as the CSU could enable the former German Democratic Republic to prepare and conduct political attacks against the Federal Republic of Germany.        In fixing the third applicant's sentence, the Court of Appeal regarded as mitigating circumstances in particular that he had no criminal record, had a regular life and had got involved in espionage due to his friendship with a citizen of the former German Democratic Republic.   However, in view of the aggravating circumstances, in particular the lengthy period of the third applicant's involvement in espionage, the Court of Appeal regarded a prison sentence of one year as appropriate.   The Court of Appeal considered that the execution of this term of imprisonment could be suspended on probation.        On 28 September 1994 the Third Senate of the Federal Court of Justice, sitting with five judges, dismissed the third applicant's appeal on points of law.        On 23 May 1995 a panel of three judges of the Second Senate of the Federal Constitutional Court refused to admit the third applicant's constitutional complaint of 4 November 1994 about his conviction of espionage.   The Constitutional Court referred to SS. 93a and 93b of the Federal Constitutional Court Act and to a decision of the Second Senate of 15 May 1995 (2 BvL 19/91 and others), which was attached to its decision in the third applicant's case.   The decision was served on 1 June 1995.     B.    Domestic law and practice   I.    Acts of Espionage   a.    Under the criminal law of the Federal Republic of Germany, treason (Landesverrat) is punishable under S. 94 and espionage (geheimdienstliche Agententätigkeit) under S. 99 of the Penal Code (Strafgesetzbuch), respectively.        S. 94 of the Penal Code provides as follows:   <German>        "1.    Wer ein Staatsgeheimnis        (1)    einer fremden Macht oder einer ihrer Mittelsmänner      mitteilt oder        (2)    sonst an einen Unbefugten gelangen läßt oder      öffentlich bekannt macht, um die Bundesrepublik Deutschland      zu benachteiligen oder eine fremde Macht zu begünstigen,        und dadurch die Gefahr eines schweren Nachteils für die      äußere Sicherheit der Bundesrepublik Deutschland      herbeiführt, wird mit Freiheitsstrafe nicht unter einem      Jahr bestraft.        2.     In besonders schweren Fällen ist die Strafe      lebenslange Freiheitsstrafe oder Freiheitsstrafe nicht      unter fünf Jahren.   Ein besonders schwerer Fall liegt in      der Regel vor, wenn der Täter        (1)    eine verantwortliche Stellung mißbraucht, die ihn zur      Wahrung von Staatsgeheimnissen besonders verpflichtet, oder        (2)    durch die Tat die Gefahr eines besonders schweren      Nachteils für die äußere Sicherheit der Bundesrepublik      Deutschland herbeiführt."   <Translation>        "1.    Anybody who        (1)    communicates a State secret to a foreign power or one      of its agents or        (2)    otherwise puts a State secret at the disposal of a      person not authorised to have knowledge of it, or discloses      it to the public, in order to prejudice the Federal      Republic of Germany or to favour a foreign power,        and thereby creates a risk of a serious prejudice to the      external security of the Federal Republic of Germany, shall      be liable to imprisonment for a period of not less than one      year.        2.     In particularly serious cases, the punishment shall be      life imprisonment or imprisonment for a period of not less      than five years.   In general, a case has to be regarded as      a particularly serious one if the offender        (1)    abuses a responsible post where he was under a      particular duty to keep State secrets, or        (2)    as a consequence of the offence, creates a risk of a      particularly serious prejudice to the external security of      the Federal Republic of Germany."        S. 99 of the Penal Code, as far as relevant, provides as follows:   <German>        "1.    Wer        (1)    für den Geheimdienst einer fremden Macht eine      geheimdienstliche Tätigkeit gegen die Bundesrepublik      Deutschland ausübt, die auf die Mitteilung oder Lieferung      von Tatsachen, Gegenständen oder Erkenntnissen gerichtet      ist, oder        (2)    gegenüber dem Geheimdienst einer fremden Macht oder      einem seiner Mittelsmänner sich zu einer solchen Tätigkeit      bereit erklärt,        wird mit Freiheitsstrafe bis zu fünf Jahren oder mit      Geldstrafe bestraft, wenn die Tat nicht in § 94 oder ...      mit Strafe bedroht ist.        2.     In besonders schweren Fällen ist die Strafe      Freiheitsstrafe von einem Jahr bis zu zehn Jahren.   Ein      besonders schwerer Fall liegt in der Regel vor, wenn der      Täter Tatsachen, Gegenstände oder Erkenntnisse, die von      einer amtlichen Stelle oder auf deren Veranlassung      geheimgehalten werden, mitteilt oder liefert und wenn er        (1)    eine verantwortliche Stellung mißbraucht, die ihn zur      Wahrung solcher Geheimnisse besonders verpflichtet, oder        (2)    durch die Tat die Gefahr eines schweren Nachteils für      die Bundesrepublik Deutschland herbeiführt.      ..."      <Translation>        "1.    Anybody who        (1)    commits, on behalf of a secret service of a foreign      power, espionage against the Federal Republic of Germany,      aiming at communicating or forwarding facts, objects or      findings, or        (2)    agrees with the secret service of a foreign power or      one of its agents to pursue such an activity,        shall be liable to imprisonment for a period not exceeding      five years or a fine, unless the offence is punishable      under S. 94 ...        2.     In particularly serious cases, the punishment shall be      imprisonment for a period of from one to ten years.   In      general, a case has to be regarded as a particularly      serious one if the offender communicates or forwards facts,      objects or findings, which are kept secret by a public      authority or upon the instruction by a public authority,      and if he        (1)    abuses a responsible post where he was under a      particular duty to keep such secrets, or        (2)    as a consequence of his offence, creates a risk of a      serious prejudice to the Federal Republic of Germany.      ..."          The provisions of the Penal Code are applicable to offences committed within the territory of the Federal Republic of Germany (Inlandstaten), pursuant to S. 3 of the Penal Code.   According to S. 5 (4), SS. 94 and 99 are also applicable to offences committed abroad (Auslandstaten).   b.    The Penal Code of the former German Democratic Republic also contained provisions regarding the punishment of espionage and treason to the disadvantage of the former German Democratic Republic or one of its allies.   These provisions extended to espionage on behalf of the Federal Republic of Germany.   II.   The German Unification Treaty of 31 August 1990        The Treaty between the Federal Republic of Germany and the former German Democratic Republic on the German Unification (Einigungsvertrag) of 31 August 1990 abolished, with effect as from 3 October 1990, the Penal Code of the German Democratic Republic and extended the applicability of the criminal law of the Federal Republic of Germany to the territory of the former German Democratic Republic (with some exceptions irrelevant in the present context).        In the course of the negotiations on the above Treaty, an amnesty for persons having committed acts of espionage on behalf of the German Democratic Republic was considered. However, this matter was not pursued on account of hesitations in the general public and of envisaged difficulties in the Federal Diet (Bundestag).   Further attempts to introduce such an amnesty in 1990 and 1993, respectively, remained unsuccessful.   III. Procedure before the Federal Constitutional Court        According to Article 93 para. 1 (4a) of the Basic Law (Grundgesetz), the Federal Constitutional Court (Bundesverfassungsgericht) shall decide on complaints of unconstitutionality, which may be entered by any person who claims that one of his basic rights or one of his rights under paragraph 4 of Article 20, under Articles 33, 101, 103, or 104 has been violated by a public authority.        Article 100 para. 1 of the Basic Law provides inter alia that, if a court considers that a statute on whose validity its decision depends is unconstitutional, the proceedings shall be stayed, and a decision shall be obtained from the Federal Constitutional Court if the Basic Law is held to be violated.   According to paragraph 2 of this provision, the court shall obtain a decision from the Federal Constitutional Court if, in the course of litigation, doubt exists whether a rule of public international law is an integral part of federal law and whether such rule directly creates rights and duties for the individual.        According to S. 93a and S. 93b of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz), a constitutional complaint is not admitted for an examination on its merits, if it raises no constitutional issue of fundamental importance and if its examination is not necessary for the protection of the complainant's constitutional rights.   IV.   Federal Constitutional Court decision of 15 May 1995        On 22 July 1991 the Berlin Court of Appeal (Kammergericht) suspended criminal proceedings relating to charges of espionage, treason and corruption in order to obtain a decision by the Federal Constitutional Court on the question whether persons who had been living in the former German Democratic Republic and had committed the above offences from the territory of the former German Democratic Republic, could be prosecuted.   Furthermore, numerous persons convicted of such offences lodged constitutional complaints with the Federal Constitutional Court, claiming that their respective convictions violated in particular their rights of liberty, as guaranteed under Article 2 para. 2 of the Basic Law, as well as their right to equality, as guaranteed under Article 3 of the Basic Law.        On 15 May 1995 the Federal Constitutional Court rendered a leading decision on the request submitted by the Berlin Court of Appeal and three constitutional complaints.        In its decision, the Federal Constitutional Court recalled its case-law according to which the prosecution for treason and espionage as provided for under SS. 94 and 99 of the Penal Code amounted to an interference with the rights to liberty under Article 2 of the Basic Law which was justified from a constitutional point of view.   This finding also applied to the extent that secret agents of the former German Democratic Republic were liable to punishment even if they had only acted within the territory of the former German Democratic Republic or abroad.   In this respect, the Constitutional Court considered that the relevant provisions of the Penal Code aimed at protecting the external security of the Federal Republic of Germany, and took into account that the offences in question had been committed at a time when the Federal Republic of Germany was particularly exposed to secret service operations of its enemies.        However, according to the Constitutional Court, the question arose whether or not the accession of the German Democratic Republic to the Federal Republic of Germany required a new appraisal of the constitutional issues, in particular with regard to acts of espionage within the meaning of SS. 94 and 99 of the Penal Code, committed from the territory of the German Democratic Republic by persons who were citizens of the German Democratic Republic and living there.        The Constitutional Court found that the fact that espionage on behalf of the former German Democratic Republic was prosecuted as a criminal offence whereas the penal provisions of the former German Democratic Republic regarding espionage committed by agents of the Federal Intelligence Service had been repealed in the context of the Unification Treaty did not amount to discrimination.   Rather, such difference in treatment resulted from the particularities of national security rules (Staatsschutzrecht), which protected the State against espionage by foreign powers.   Thus, espionage against the Federal Republic of Germany on behalf of the German Democratic Republic remained a punishable act even after the accession of that State.        Moreover, the punishment of espionage on behalf of the former German Democratic Republic following the unification of Germany did not breach any general rules of public international law, contrary to Article 25 of the Basic Law.   The Constitutional Court, having regard to a legal opinion of the Heidelberg Max-Planck-Institute for foreign public law and public international law of 1 July 1994, observed that, under public international law, a State was entitled to enact legislation relating to criminal offences committed within its territory as well as to offences committed by foreigners abroad to the extent that its existence or important interests were at risk.   There was no justification for espionage under public international law and there were no rules on the criminal liability of espionage by a State following the accession of another State.        Furthermore, the prosecution of espionage on behalf of the former German Democratic Republic on the basis of the penal laws in force in the Federal Republic of Germany at the time of the offences concerned did not amount to a violation of the rule that no act could be prosecuted if it was not a criminal offence under the relevant law at the time when it was committed.   The Constitutional Court noted that the scope of the provisions on treason and espionage was determined by SS. 3, 5 and 9 of the Penal Code, which had been in force before the time of the offences in question.   The extension of the jurisdiction of the Federal Republic of Germany regarding such offences was a consequence of the accession and the Unification Treaty.        The Constitutional Court next examined whether or not the results of this extension of the jurisdiction of the Federal Republic of Germany amounted to a breach of the rule of law (Rechtsstaatsprinzip), and, in particular, the principle of proportionality.        The Constitutional Court found that, in the unique situation of the unification of Germany, the prosecution of citizens of the former German Democratic Republic, who had been living in the former German Democratic Republic and had acted solely within the territory of the German Democratic Republic or of other States where they were safe from extradition or punishment, violated the principle of proportionality. Consequently, there was a technical bar to prosecution (Verfolgungshindernis) regarding this group of persons.   Criminal prosecution and punishment as a means of protecting legal interests should not result in a disproportionate interference with the rights of the persons concerned.        In this context, the Constitutional Court considered the difference between the punishment for espionage and for other criminal offences.   Public international law did not prohibit espionage, but also allowed the State spied on to punish spies even if this person had only acted abroad.   There was no differentiation between espionage on behalf of a totalitarian State or espionage on behalf of a State with a free democratic basic order.   Thus, espionage had an ambivalent nature: it served the interests of the observing State where it was accordingly regarded as lawful, and prejudiced the interests of the State being spied on where it was therefore regarded as a punishable offence.   Punishment of foreign spies was not, therefore, justified on account of a general moral value-judgment of reproach (Unwerturteil) regarding the espionage act, but only for the purpose of protecting the State spied on.        According to the Federal Constitutional Court, the fall of the German Democratic Republic, and thereby the termination of any protection for its spies, together with the replacement of its legal order by that of the Federal Republic of Germany which rendered prosecution possible, resulted in a disproportionate prejudice to the group of offenders who had committed espionage on behalf of the German Democratic Republic solely within the latter's territory and had not left the sphere of its protection, or had only been within the territory of other States where they had not risked extradition or punishment in respect of such acts.   The unification had at the same time repealed the punishment of espionage activities on behalf of the Federal Republic of Germany.   The Court further found that any punishment of this group of persons would counteract the process of creating the German unity.        With regard to other citizens of the former German Democratic Republic who had committed espionage within the territory of the Federal Republic of Germany or one of its allies, or in a third State where they had risked extradition or punishment, there was no general bar to prosecution as the above conditions were not necessarily all met.   However, those persons had, as a consequence of the fall of the German Democratic Republic, also lost the protection of that State, if only the expectation to be exchanged in case of their arrest. Moreover, even if they knew about the legal order of the Federal Republic of Germany, these persons possibly mainly adjusted their sense of culpability (Unrechtsbewußtsein) to the legal order of the former German Democratic Republic.   Above all, they were meanwhile prosecuted by their own State in respect of espionage activities committed at a time when they regarded that State as a foreign State.   In such cases all relevant circumstances had to be weighed in the light of the above considerations with a view to determining whether or not prosecution should be continued, or in fixing the sentence.        In their separate opinion to the Federal Constitutional Court's judgment, three judges of the Second Senate explained that they disagreed with the judgment as far as the finding of a technical bar to the prosecution of a group of persons having committed espionage was concerned.   COMPLAINTS   1.    The applicants complain under Article 5 of the Convention that their detention is unlawful on the ground that, following the German unification, there was no legal basis for their conviction and subsequent detention in respect of espionage on behalf of the former German Democratic Republic.   They consider that, on the occasion of the German unification, both the former German Democratic Republic and the Federal Republic of Germany ceased to exist and a new State came into existence: the unified Germany.   The reciprocal rules on espionage were, therefore, no longer applicable.   2.    The applicants further complain under Article 14, in conjunction with Articles 5 and 10, of the Convention that their respective convictions of espionage amounted to discrimination on political grounds.   They submit that citizens of the former German Democratic Republic having committed espionage on behalf of the Federal Republic of Germany or its allies were not prosecuted or, to the extent that they had been convicted by the courts of the former German Democratic Republic, they had been rehabilitated or could be rehabilitated. Moreover, the punishment of citizens of the former German Democratic Republic was less severe, or in particular circumstances, there was even a technical bar to their prosecution.   They consider that the Federal Constitutional Court had wrongly applied the principle of proportionality and disregarded the necessity of protecting persons acting in good faith.   3.    The applicants also complain that the Federal Court of Justice was not an impartial tribunal established by law within the meaning of Article 6 of the Convention.   Referring to a judgment of one of the senates of the Federal Court of Justice deciding in civil matters (X. Zivilsenat) of March 1993, they maintain that, according to a general practice, the composition of the benches was not fixed in advance, but the president of each senate determined the date for hearings and the composition of the senate at a particular session.   4.    Moreover, they complain under Article 6 of the Convention that the Federal Constitutional Court refused to admit their individual constitutional complaints for an examination of their merits.   They also consider that the Federal Constitutional Court was not an impartial tribunal established by law.   In this respect they submit that half of the judges of the Federal Constitutional Court are elected by a group of twelve members of the Federal Diet, who are members of the Government parties and the strongest opposition party, whereas smaller parties are not represented in this group.   5.    The applicants finally complain under Article 6 of the Convention about the length of their constitutional complaint proceedings before the Federal Constitutional Court.   THE LAW   1.    The applicants complain under Article 5 para. 1 (Art. 5-1) of the Convention that their respective convictions of espionage, and consequently their subsequent detention, were unlawful.        Article 5 para. 1 (Art. 5-1), so far as relevant, provides as follows:        "1.    Everyone has the right to liberty and security of person.      No one shall be deprived of his liberty save in the following      cases and in accordance with a procedure prescribed by law:              a.     the lawful detention of a person after conviction by      a competent court;      ..."        The Commission observes that, while the first applicant was sentenced to six years and nine months' unconditional imprisonment, and the second applicant to six years' unconditional imprisonment, the third applicant was sentenced to one year's imprisonment on probation. The third applicant did not submit that the suspension was revoked and that he had to serve his prison sentence.   In these circumstances, the Commission finds that the third applicant cannot claim to be a victim, within the meaning of Article 25 para. 1 (Art. 25-1) of the Convention, of any violation of his right under Article 5 para. 1 (Art. 5-1) of the Convention.        As regards the complaints raised by the first and second applicants, the Commission recalls that the terms "in accordance with a procedure prescribed by law" and "lawful detention" in Article 5 para. 1 (Art. 5-1) refer to the applicable domestic law, and it follows that disregard of the domestic law may entail a breach of the Convention.   However, the scope of review by the Convention organs is limited and it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law (see Eur. Court H.R., Winterwerp judgment of 24 October 1979, Series A no. 33, p. 18, para. 39, p. 20, paras. 45-46; Eur. Commission H.R., No. 9997/82, Dec. 7.12.82, D.R. 31 p. 245).        In the present case, the Bavarian Court of Appeal and the Düsseldorf Court of Appeal, as confirmed by the Federal Court of Justice and the Federal Constitutional Court, held that the respective applicants' conduct constituted the offence of espionage within the meaning of S. 99 of the Penal Code of the Federal Republic of Germany, which was applicable in the circumstances of their cases and required prosecution.        The Commission considers that the applicants' submissions, in particular their views regarding the consequences of the German unification on the applicability of the penal laws of the Federal Republic of Germany in the field of espionage, do not disclose any element to render their detention not "lawful" within the meaning of Article 5 para. 1 (a) (Art. 5-1-a) of the Convention.        The Commission concludes that the first and second applicants were deprived of their liberty "in accordance with a procedure prescribed by law" and that they were lawfully detained "after conviction by a competent court".        It follows that the applicants' complaint under Article 5 para. 1 (Art. 5-1) of the Convention is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicants further complain under Article 14, in conjunction with Articles 5 and 10 (Art. 14+5+10), of the Convention that their respective convictions of espionage amounted to discrimination on political grounds.        According to Article 14 (Art. 14), the "enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status".        The Commission recalls that Article 14 (Art. 14) complements the other substantive provisions of the Convention and its Protocols.   It has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by those provisions.   There can be no room for application of Article 14 (Art. 14) unless the facts of the case fall within the ambit of one or more of such provisions (Eur. Court H.R., Inze judgment of 28 October 1987, Series A no. 126, p. 17, para. 36).        To the extent that the applicants rely on Article 5 (Art. 5), the Commission refers to its above findings that only the first and second applicants were sentenced to imprisonment, whereas the third applicant cannot claim to be the victim of a violation of his right to liberty after his conviction of espionage.   The applicants further invoke their right to freedom of expression under Article 10 (Art. 10) of the Convention.   The Commission considers that the applicants' complaints about discrimination relate in substance to their respective convictions of espionage and may be taken into account under Article 10 para. 1 (Art. 10-1), which includes, as part of the right to freedom of expression, the right to impart information.   Their complaint may therefore be said to fall within the ambit of Article 14 (Art. 14).         Article 14 (Art. 14) safeguards individuals, placed in similar situations, from discrimination in the enjoyment of the rights and freedoms set forth in the Convention and its Protocols.   A distinction is discriminatory if it "has no objective and reasonable justification".   The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law (Eur. Court H.R., Stjerna judgment of 25 November 1994, Series A no. 299-B, pp. 63-64, para. 48).        The applicants submit that citizens of the former German Democratic Republic having committed espionage on behalf of the Federal Republic of Germany or its allies were not prosecuted or, to the extent that they had been convicted by the courts of the former German Democratic Republic, they had been rehabilitated or could be rehabilitated. Moreover, the punishment of citizens of the former German Democratic Republic was less severe, or in particular circumstances, there was even a technical bar to their prosecution. They consider that the Federal Constitutional Court had wrongly applied the principle of proportionality and disregarded the necessity of protecting persons acting in good faith.        As regards the applicants' first argument, the Commission notes that the applicants, citizens of the Federal Republic of Germany, were convicted of espionage pursuant to S. 99 of the Penal Code of the Federal Republic of Germany, i.e. of having committed, on behalf of a foreign power, espionage against the Federal Republic of Germany, or agreed to pursue such an activity.   The Federal Constitutional Court, considering the possible consequences of the accession of the German Democratic Republic to the Federal Republic of Germany, found that the fact that espionage on behalf of the former German Democratic Republic was pr