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. 29526/95                       by Siegfried Otto STRESEMANN                       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 24 October 1995 by Siegfried Otto STRESEMANN against Germany and registered on 12 December 1995 under file No. 29526/95;        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 applicant, born in 1941, is a German national and resident in Castrop-Rauxel.   He is a technician by profession.   A.    Particular circumstances of the case        The facts of the case, as they have been submitted by the applicant, may be summarised as follows.        On 15 December 1994 the Koblenz Court of Appeal (Oberlandesgericht) sitting as court of first instance convicted the applicant of espionage (geheimdienstliche Agententätigkeit) on behalf of the former German Democratic Republic together with corruption (Bestechlichkeit), pursuant to the relevant provisions of the German Penal Code (Strafgesetzbuch).   The applicant was sentenced to two years and six months' imprisonment.   The applicant was also, for a period of five years, deprived of the right to hold a public office, to vote and to be elected, and the forfeiture of a sum of money amounting to DM 30,000 was ordered. The Court found that the applicant, as employee of the Federal Office for Military Material (Bundesamt für Wehrtechnik und Beschaffung), had forwarded secret information on the organisation of the Office, and documents relating to military material to the secret service of the former German Democratic Republic. The decision was served upon the applicant on 5 January 1995.   B.    Domestic law and practice        S. 333 of the Code of Criminal Procedure (Strafprozeßordnung) provides for a right to appeal on points of law (Revision) against, inter alia, a judgment rendered by a Court of Appeal, sitting as court of first instance.        According to Article 93 para. 1 (4a) of the Basic Law (Grund- gesetz), 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 or 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 as to whether a rule of public international law is an integral part of federal law and whether such a rule directly creates rights and duties for the individual.        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 punished.   Furthermore, numerous persons convicted of such offences lodged constitutional complaints (Verfassungs- beschwerden) 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, in a leading decision concerning the request submitted by the Berlin Court of Appeal and three constitutional complaints, found that there was no rule of public international law according to which punishment for espionage and similar offences was excluded if the offences in question had been committed on instruction and from the territory of a State which had subsequently acceded to the State spied on.   However, the Constitutional Court, having regard to the principle of proportionality, found in particular that there was a technical bar to prosecution of citizens of the former German Democratic Republic who had committed espionage solely within the territory of the former German Democratic Republic and that considerations of proportionality had also to be taken into account when prosecuting and punishing other citizens of the former German Democratic Republic for espionage.   COMPLAINTS        The applicant complains under Articles 5 and 14 of the Convention about his conviction and his subsequent detention.   He considers that following the German unification in 1990 there was no legal basis for punishment in respect of espionage on behalf of the former German Democratic Republic. He further submits that persons who had been convicted, by the courts of the former German Democratic Republic, of espionage on behalf of the Federal Republic of Germany had meanwhile been rehabilitated. Moreover, he maintains that the punishment of citizens of the former German Democratic Republic was less severe.        As regards Article 26 of the Convention, the applicant submits that he did not lodge a constitutional complaint with the Federal Constitutional Court on the ground that proceedings raising the same issues were already pending before that Court.   THE LAW        The applicant complains about his conviction by the Koblenz Court of Appeal of 15 December 1994, and of his subsequent detention.        According to Article 26 (Art. 26) of the Convention, the Commission 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.        In the present case, the applicant did not appeal on points of law to the Federal Court of Justice (Bundesgerichtshof) and he did not lodge a constitutional complaint with the Federal Constitutional Court.        The Commission recalls that under international law, to which Article 26 (Art. 26) makes express reference, the rule of exhaustion of domestic remedies demands the use of such remedies as are available and sufficient and relate to the breaches alleged (see, Eur. Court H.R., Ciulla judgment of 22 February 1989, Series A no. 148, p. 15, para. 31; Brozicek judgment of 19 December 1989, Series A no. 167, pp. 16-17, para. 34).        The Commission observes that both an appeal on points of law to the Federal Court of Justice and a constitutional complaint to the Federal Constitutional Court, based on the alleged violation of the right to liberty and the right to equality, as guaranteed by the Basic Law, would have been effective remedies for the purposes of Article 26 (Art. 26) (see, mutatis mutandis, No. 6271/73, Dec. 13.5.76, D.R. 6 p. 62; No. 6830/74, Dec. 16.5.77, D.R. 9 p. 23; No. 8499/79, Dec. 7.10.80, D.R. 21 p. 176; No. 11457/86, Dec. 4.5.87, D.R. 52 p. 236). Consequently, the applicant has not exhausted the remedies available to him under German law.        The Commission has had regard to the applicant's submission that he was not required to exhaust these remedies because of other proceedings pending before the Federal Constitutional Court which concerned similar matters.        The Commission observes that Article 26 (Art. 26) must be applied "with some degree of flexibility and without excessive formalism" (cf. Eur. Court H.R., Guzzardi judgment of 6 November 1980, Series A no. 39, p. 26, para. 72; Cardot judgment of 19 March 1991, Series A no. 200, p. 18, para. 34; Castells judgment of 23 April 1992, Series A no. 236, p. 19, para. 27).        However, the applicant did not argue that there was any case-law in existence at the relevant time to show that the above remedies lacked any prospect of success and were, therefore, pointless (cf., mutatis mutandis, Eur. Court H.R., B. v. France judgment of 25 March 1992, Series A no. 232-C, pp. 46-47, para. 42; No. 6271/73, loc. cit.; No. 9586/82, Dec. 14.5.87, D.R. 52 p. 38).        Even assuming that the applicant was excused from exhausting the remedies available to him under German law, the Commission finds that the last decision regarding his case was given by the Koblenz Court of Appeal on 15 December 1994 and served on 5 January 1995, whereas his application was only submitted on 24 October 1995 which is more than six months later.        The Commission considers that the applicant, who did not exhaust all remedies available to him under German law, and in particular a constitutional complaint to the Federal Constitutional Court, cannot be excused for delaying his application for more than six months after the last decision in his case, pending the outcome of such proceedings in similar cases.   Consequently, no special circumstances existed which might have absolved the applicant, according to the generally recognised rules of international law, from complying with the conditions under Article 26 (Art. 26).        It follows that the application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission       President of the Commission        (H.C. KRÜGER)                        (S. TRECHSEL)