CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 20 octobre 1997

.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 and Dieter POPP                       against Germany          The European Commission of Human Rights sitting in private on 20 October 1997, the following members being present:                Mr     S. TRECHSEL, President            Mrs    G.H. THUNE            Mrs    J. LIDDY            MM     E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  C.L. ROZAKIS                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  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                  E.A. ALKEMA                  M. VILA AMIGÓ            Mrs    M. HION            MM     R. NICOLINI                  A. ARABADJIEV              Mr     M. de SALVIA, 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 and Dieter POPP against Germany and registered on 23 November 1995 under file No. 29357/96;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      4 November 1996 and the observations in reply submitted by the      applicants on 5 February 1997;   -     the supplementary observations of the respondent Government on      24 April 1997;        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.   A.    Particular circumstances of the case        The facts of the case, as submitted by the parties, may be summarised as follows.   I.    The criminal proceedings against the first applicant        In 1990 criminal proceedings were initiated against the first applicant on the suspicion of having committed espionage (geheimdienst- liche 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 Staatssicherheit), 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 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 relation to 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 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 appropriate.        On 24 June 1992 the Third Chamber of the Federal Court of Justice (Bundesgerichtshof), sitting with five judges, dismissed the first applicant's appeal on points of law (Revision).        On 12 February 1994 the first applicant was released after having served half of her sentence.   II.   The criminal proceedings against the second applicant        In April 1990 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 DEM 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 taken copies of secret documents, or originals thereof, to his home where the originals had been 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 a 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 not committed espionage 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 appropriate.   As regards the co-accused, the Court of Appeal took into account the fact that he was a citizen of the former German Democratic Republic and a secret agent acting from within that territory.        On 22 July 1992 the Third Chamber of the Federal Court of Justice, sitting with five judges, dismissed the second applicant's appeal on points of law.        On 11 May 1994 the second applicant was released after having served two third of his sentence.   III. The proceedings before the Federal Constitutional Court        The first applicant appealed to the Federal Constitutional Court on 18 July 1992.   Following indications as to certain formal shortcomings in her constitutional complaint, she filed supplementary submissions on 18 August 1992.   Her case was registered on 27 August 1992.   The second applicant's constitutional complaint of 13 August was received by the Federal Constitutional Court on 14 August 1992.        The processing of the applicants' and other similar cases was postponed as the Second Division of the Federal Constitutional Court envisaged rendering a leading decision in some test cases.   On 23 March 1994 the Second Division, having considered the further action to be taken in these cases, ordered the preparation of an expert opinion on questions of international public law.   The expert opinion which first should have been ready by mid August 1994 was received by the Second Division on 11 July 1994.   The parties in the test cases were given an opportunity to submit comments before the end of August 1994.   Deliberations were taken up again in November 1994, but again suspended between December 1994 and March 1995.   However, during that period, a first draft of the decision was prepared.   On 15 May 1995 the Second Division of the Federal Constitutional Court rendered the said leading decision (2 BvL 19/91 and others).        On 23 May 1995 the Second Section of the Second Division of the Federal Constitutional Court, in separate decisions, refused to admit the first and second applicants' constitutional complaints.   The Constitutional Court referred to SS. 93a and 93b of the Federal Constitutional Court Act and to the decision of the Second Division of 15 May 1995, which was attached to the decisions in the applicants' cases. The first applicant received the decision on 9 June 1995.   The second applicant's counsel received the decision on 3 June 1995, and the second applicant himself, on 21 June 1995.   B.    Domestic law and practice   I.    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.        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 espionage on behalf of the German Democratic Republic was considered; however, this matter was not pursued on account of hesitations among members of 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 (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, under Articles 33, 101, 103, or 104 has been violated by 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 Second Division of the Federal Constitutional Court rendered a leading decision on the request submitted by the Berlin Court of Appeal and three of the 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 espionage 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 for espionage 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 (Verfolgungs- hindernis) 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 out 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 out 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 out.        According to the Federal Constitutional Court, the fall of the German Democratic Republic, and thereby 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 jeopardise the process of creating 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 being confronted with the legal order of the Federal Republic of Germany, these persons might have mainly adjusted their sense of responsibility (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 Division 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        The remaining part of the application concerns the first and second applicants' complaint that the length of their constitutional complaint proceedings before the Federal Constitutional Court exceeded a reasonable time and therefore violated Article 6 para. 1 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 1 May and registered on 23 November 1995.        On 24 June 1996 the Commission decided to communicate the applicants' complaint about the length of the constitutional court proceedings to the respondent Government.   The remainder of the application was declared inadmissible.        The Government's written observations were, after an extension of the time-limit, submitted on 4 November 1996.   The applicants replied on 5 February 1997, also after an extension of the time-limit. The Government amended their observations on 24 April 1997.   THE LAW        The applicants complain under Article 6 (Art. 6) of the Convention about the length of their constitutional complaint proceedings before the Federal Constitutional Court.        Article 6 para. 1 (Art. 6-1), as far as relevant, provides as follows:        "In the determination of ... any criminal charge against him,      everyone is entitled to a ... hearing within a reasonable time      by [a] ... tribunal..."        The Government maintain that the complaints are incompatible ratione materiae with the provisions of the Convention.   They submit that the Federal Constitutional Court does not determine any criminal charges, but its review is limited to particular aspects in connection with the application of criminal law.   If successful the applicants' constitutional complaints could only have resulted in a finding by the Constitutional Court that their convictions had been unconstitutional, that the respective convictions be set aside and their cases be sent back to the competent criminal courts.        The Government further submit that the applicants' cases formed part of a large number of cases concerning the punishment of espionage following German unification. The proceedings necessitated the preparation of an expert opinion on questions of international law. According to them, the complexity of the matter appears best from the Constitutional Court's decision of 15 May 1995 in the leading cases.        Moreover, the Government, referring to the special features of the procedure in the Federal Constitutional Court and the specific nature of the present case, consider that no unreasonable delays are imputable to the Federal Constitutional Court.   They submit in particular that over the same period the Federal Constitutional Court had to rule on more urgent cases of considerable political importance.        In this respect, the Government, referring to information obtained from the Second Division of the Federal Constitutional Court, explain that the first cases concerning convictions for espionage after the German unification had been registered in 1991.   Further cases were received between 1992 and 1994. It had initially been envisaged to prepare the test cases for deliberations as from autumn 1992.   The Second Division changed this planning in the summer of 1992 as it regarded other cases as more urgent, namely proceedings concerning the reform of the legal provisions relating to abortion (terminated in May 1993), proceedings concerning the challenge to the Maastricht Treaty, which had great importance for the ratification of this Treaty and the future of the European Communities (terminated in October 1993), proceedings concerning the punishment for dealing with cannabis (terminated in March 1994), proceedings concerning missions of the German Armed Forces in former Yugoslavia and Somalia (terminated in July 1994), proceedings concerning subsidies for the national coal- mining industry which had been pending since 1986 (terminated in October 1994) as well as several other less complex cases.        The applicants dispute the Government's views.        The Commission, having regard to the arguments advanced by the parties on the question of the applicability of Article 6 para. 1 (Art. 6-1) of the Convention to the complaint proceedings before the Federal Constitutional Court, finds that in the present case this question raises complex legal issues which cannot be decided at the admissibility stage, but must be joined to the examination of the merits of the applicants' complaint.   In this respect, the Commission considers, in the light of the case-law of the Convention organs on the question of "reasonable time", and having regard to all the information in its possession, that a thorough examination of this complaint is required, both as to the law and as to the facts.   The Commission concluded therefore, that the remainder of the application is not manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible have been established.        For these reasons, the Commission, by a majority,        DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE,      without prejudging the merits of the case.           M. de SALVIA                         S. TRECHSEL          Secretary                            President      to the Commission                     of the Commission