CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 octobre 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. 32831/96                       by J. O.                       against Germany          The European Commission of Human Rights (First Chamber) sitting in private on 16 October 1996, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 12 July 1996 by J. O. against Germany and registered on 30 August 1996 under file No. 32831/96;        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 1965, is a German national and resident in Magdeburg.   In the proceedings before the Commission he is represented by Mr. A. Streubel, a lawyer practising in Berlin.   A.    Particular circumstances of the case        The facts of the case, as submitted by the applicant, may be summarised as follows.        On 5 May 1995 the Brandenburg Ministry of the Interior (Ministerium des Innern), pursuant to S. 3 of the Association Act (Vereinsgesetz), issued a prohibition order against the association "Direkte Aktion/Mitteldeutschland (JF)", which was found to pursue activities directed against the German constitutional order. The order was directed to the association concerned and, still in May, mailed care of, inter alia,   the applicant.   In the reasoning of the prohibition order, the applicant was mentioned as a leading member of the said association.        The applicant, represented by counsel, commenced proceedings in the Frankfurt/Oder Administrative Court of Appeal (Oberverwaltungs- gericht) to set aside (Anfechtungsklage) the prohibition order to the extent that he was concerned. He complained that the order, in its reasoning, incorrectly mentioned him as member of the association and also that a copy of the order was mailed to him.        On 12 October 1995 the Administrative Court of Appeal declared the action inadmissible.   It found that the applicant had no capacity to take the said proceedings.   Referring to S. 42 para. 2 of the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung), the Court found that such an action was only admissible to the extent that the plaintiff claimed that the prohibition order violated his own rights.   However, the prohibition order had been directed against the association concerned, and, accordingly, only the association itself could lodge an action to set aside the order.   Individual members had no right to appeal.   All the more the applicant, claiming not to be a member of the prohibited association, could not lodge an action to set aside the prohibition order.   His submissions concerning the mailing of the order or its reasoning could not be heard in the particular type of proceedings before the Court of Appeal.   Leave to appeal on points of law (Revision) was not granted.        On 21 February 1996 the Federal Administrative Court (Bundesverwaltungsgericht) rejected the applicant's request for leave to appeal on points of law (Beschwerde gegen die Nichtzulassung der Revision) on the ground that the applicant had failed to specify any ground of appeal (Revisionszulassungsgrund) in accordance with the relevant provisions of the Code of Administrative Court Procedure.   His argument that, contrary to the findings of the Administrative Court of Appeal, he should be entitled to bring an action to set aside the prohibition order of 5 May 1995 to the extent that the order was directed against him, did not show any fundamental importance of the case or any procedural defects.   The Federal Administrative Court considered in particular that it need not resolve the question as to how far individual members of a prohibited association could lodge an action to set aside the prohibition order as, according to the applicant's own submissions, he was not a member of the association concerned.   However, third parties could not appeal against a prohibition order.   Furthermore, to the extent that the mailing of the order to the applicant and his being mentioned in the reasoning amounted to a violation of his rights, he could not claim that the prohibition order be set aside.   Questions related to the alleged violations of the applicant's own rights could not, therefore, be raised in the context of the proceedings brought by him.   Pursuant to S. 48 para. 2 of the Code of Administrative Court Procedure, the Administrative Court of Appeal, as a court of first instance, was solely competent to decide upon actions to set aside prohibition orders issued under S. 3 para. 2 No. 1 of the Association Act, and the related orders on the prohibition of further activities and the founding of similar associations under S. 8 para. 2 of the Association Act.   The applicant's complaints were not included.        On 7 June 1996 the Federal Constitutional Court (Bundes- verfassungsgericht) refused to admit the applicant's constitutional complaint (Verfassungsbeschwerde) about the decision of the Federal Administrative Court of 21 February 1996.   B.    Relevant domestic law   a.    The German Association Act (Vereinsgesetz)        The Association Act regulates public-law questions regarding associations.   S. 3 provides that associations which are directed against the constitutional order may be prohibited and for the confiscation of the association's property.   According to S. 8, further activities of the prohibited association are prohibited, likewise it is prohibited to found associations for the purposes of replacing the prohibited association or to use existing associations for that purpose.   b.    The Administrative Court procedure        The jurisdiction of the German administrative courts and the procedure before them are regulated in the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung).        S. 2 provides for an administrative court system of three instances, i.e. the Administrative Courts (Verwaltungsgerichte) and Administrative Courts of Appeal (Oberverwaltungsgerichte) as well as the Federal Administrative Court (Bundesverwaltungsgericht).        According to S. 40 para. 1, administrative courts are, as a rule, competent to decide on all public-law disputes.        There are various judicial remedies, such as the general action to set aside an administrative act (Anfechtungsklage), the action to order an authority to take a particular decision (Verpflichtungsklage) or general actions for performance or omission, or for a declaratory judgment (Feststellungsklage).        An administrative court action claiming a prohibitory injunction against a public authority regarding allegedly incorrect statements, as well as their withdrawal or correction, may be founded on the basic rights of the individual concerned, in particular the right to the free development of his personality under Article 2 para. 1, in conjunction with Article 1 of the Basic Law (Grundgesetz), protecting human dignity.        S. 48 establishes a special competence of the Administrative Court of Appeal to decide, as a court of first instance, upon actions to set aside prohibition orders issued under S. 3 para. 2 (1) of the Association Act, and the related orders on the prohibition of further activities and the founding of similar associations under S. 8 para. 2 of the Association Act.     COMPLAINTS        The applicant complains that the prohibition order of 5 May 1995 amounts to a violation of his rights to freedom of expression and to freedom of association. He submits that he was never a member of the prohibited association, but, following the prohibition order in question, he is regarded and possibly penalised as being such a member. He invokes Article 1 of the Convention.   THE LAW        The applicant complains that the prohibition order of 5 May 1995 against the association "Direkte Aktion/Mitteldeutschland (JF)" was mailed to him and, in its reasoning, wrongly mentioned him as a leading member of the prohibited organisation.        However, the Commission is not required to decide whether or not the applicant's complaint discloses any appearance of a violation of the Convention as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.        The Commission recalls that Article 26 (Art. 26) of the Convention requires the exhaustion of remedies which relate to the breaches of the Convention alleged and at the same time can provide effective and sufficient redress (cf. No. 11660/85, Dec. 19.1.89, D.R. 59 p. 85).   The basis of this rule is that, before proceedings are brought in an international tribunal, the respondent State must have had an opportunity to redress the alleged damage by domestic means within the framework of its own legal system (cf. No. 5964/72, Dec. 29.9.75, D.R. 3 p. 57).        The Commission notes that on 12 October 1995 the Frankfurt/Oder Administrative Court of Appeal declared the applicant's action to set aside the decision of 5 May 1995 inadmissible.   The Administrative Court of Appeal found that the applicant had no capacity to take such proceedings, and that matters related to its service or its reasoning could not be reviewed in the type of proceedings before it. This approach was confirmed by the Federal Administrative Court.   The applicant's constitutional complaint was to no avail.        In these circumstances, the Commission finds that the action initiated by the applicant before the Administrative Court of Appeal under S. 48 of the Code of Administrative Court Procedure was not an effective remedy, for the purposes of Article 26 (Art. 26) of the Convention, with regard to his complaints.   The applicant failed to bring an action before the competent Administrative Court claiming a prohibitory injunction, and/or rectification with regard to the allegedly incorrect statements by the Brandenburg Ministry of the Interior in the impugned prohibition order.        Consequently, the applicant has not exhausted the remedies available to him under German law, as required under Article 26 (Art. 26). Furthermore, 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.       M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber