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. 32013/96                       by Heinz REISZ                       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 20 March 1996 by Heinz REISZ against Germany and registered on 25 June 1996 under file No. 32013/96;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;   THE FACTS         The applicant, born in 1938, is a German national and resident in Langen.   In the proceedings before the Commission, he is represented by Mr. H. Eichelmann, a lawyer practising in Nidda.         The facts of the case, as they have been submitted by the applicant, may be summarised as follows.   I.     Proceedings before the Federal Constitutional Court         On 9 December 1992 the Government of the Federal Republic of Germany instituted proceedings before the Federal Constitutional Court (Bundesverfassungsgericht) against the applicant for the forfeiture of constitutional rights pursuant to Article 18 of the German Basic Law (Grundgesetz).   The Government requested that, for a period of time to be fixed by the Constitutional Court, the forfeiture of the applicant's right to freedom of expression, his right to freedom of the press and freedom of reporting by means of broadcasts and films, his right to freedom of assembly and his right to freedom of association be pronounced.   The Government further requested that the applicant be prohibited from publicly expressing his views on political issues, from disseminating his political views, from participating in political meetings and from organising such meetings as well as from being a member or supporter of a political association.   Finally, they requested that he should not be entitled to stand for elections during the period of forfeiture.         In the reasoning of their request, the Government submitted that the applicant had constantly abused the above constitutional rights for the purpose of fighting against the free democratic constitutional system ("freiheitlich demokratische Grundordnung").   His activities aimed at abolishing this system by aggressive and militant means and, given his conduct in the past, it was to be expected that he would continue fighting against the free democratic constitutional system in that way.   The Government then set out in detail the applicant's activities in several extreme right-wing associations which partly pursued nazi ideas.   In the past three years, ten preliminary investigations had been conducted against the applicant on the suspicion of having committed offences motivated by his political views.   In May 1990 he had been convicted of having made use of signs of anticonstitutional organisations and had been fined DEM 800.   Three further criminal proceedings concerning charges of having made use of signs of anticonstitutional organisations and of incitement to hatred, respectively, were still pending.         The Government, referring to the case-law of the Federal Constitutional Court, further stated that the free democratic constitutional system comprised respect for the constitutional rights, the sovereignty of the people, the separation of powers, the responsibility of the Government, the rule of law and independence of the judiciary, the multi-party system and equality of opportunities for all political parties.   They considered that the applicant's aggressive antisemitism, his extreme xenophobia and his constant fight against the constitutional system seriously imperilled the system.   According to the Government, the applicant obviously availed himself of his constitutional rights with a view to destroying the free democratic constitutional order.   The applicant's agitation was particularly dangerous due to his repeated appearances on television.   Moreover, the aim of preventing the applicant from pursuing his aggressive abuse of his constitutional rights could not be achieved by more lenient measures.   Thus his criminal prosecution, the prohibition of anticonstitutional associations with which he had contacts and the mentioning of his name in the 1991 report of the Federal Agency for the Protection of the Constitution (Bundesamt für Verfassungsschutz) had had no deterrent effect.         Article 18 of the German Basic Law provides that whoever abuses freedom of expression or of opinion, in particular the freedom of the press, freedom of teaching, freedom of assembly, freedom of association, the privacy of correspondence and telecommunications, the right to property or the right to asylum in order to fight against the free democratic constitutional system, shall forfeit these basic rights.   Such forfeiture and the extent thereof shall be pronounced by the Federal Constitutional Court.         According to S. 36 of the Federal Constitutional Court Act, a request pursuant to   Article 18 of the Basic Law may be lodged by the Federal Diet, by the Federal Government or by one of the Länder Governments.   In preliminary proceedings, the Federal Constitutional Court hears the defendant on the request and then decides whether to reject the request as inadmissible or manifestly ill-founded or whether to conduct a hearing (S. 37).   S. 38 provides that the Constitutional Court may order a search or confiscation pursuant to the provisions of the Code of Criminal Procedure (Strafprozeßordnung).   If the request is well-founded, the Constitutional Court decides upon the extent to which the defendant has forfeited his or her constitutional rights; the forfeiture may be limited in time (S. 39 para. 1).   The Constitutional Court may also deprive the defendant of his or her right to vote or his or her right to stand for elections or be eligible for public office.         On 15 December 1992 the Federal Constitutional Court communicated the request to the applicant and requested him to submit his comments, if any, by 15 February 1993.   The applicant submitted his observations on 30 December 1992.         In his letter of 12 February 1996, the applicant complained to the Federal Constitutional Court about the length of the proceedings.         On 18 July 1996 the Second Chamber (Senat) of the Federal Constitutional Court joined the requests lodged by the Government against the applicant and against a further person initialled D.   The requests were rejected on the ground that they were not sufficiently reasoned.   Pursuant to the relevant provisions of the Constitutional Court Act (Bundesverfassungsgerichtsgesetz), the Constitutional Court refrained from giving reasons for its decision.   The Government was ordered to bear the defendants' legal expenses.   The decision was served upon the applicant's counsel on 30 July 1996.   II.    Proceedings before the Hessen Administrative Court of Appeal         On 8 December 1992 the Federal Minister of the Interior (Bundesminister des Innern), in pursuance of S. 3 of the Association Act (Vereinsgesetz), prohibited the political association "Deutsche Alternative" on the ground that it pursued anticonstitutional aims.         On 9 December 1992 the Darmstadt Administrative Court (Verwaltungsgericht), upon the request of the Darmstadt Regional Government (Regierungspräsidium) of the same day, ordered, inter alia, the search of the applicant's premises with a view to finding evidence to prove that the said association pursued anticonstitutional aims. The search was carried out in December 1992 and various objects, in particular documents, were seized, which were partly returned later.         On 4 March 1996 the Hessen Administrative Court of Appeal (Verwaltungsgerichtshof) dismissed the applicant's appeal of 24 December 1992.   The Court found that the search warrant had been issued in accordance with S. 4 paras. 2 and 4 of the Association Act, which allows for various investigatory measures in the context of proceedings relating to the prohibition of an association.   The applicant's submissions did not justify the conclusion that objects which had been seized should be returned to him at this stage.   The decision was served on 9 March 1996.     COMPLAINTS   1.     The applicant complains under Article 6 para. 1 of the Convention about the length of the proceedings before the Federal Constitutional Court concerning the Government's request under Article 18 of the Basic Law.   2.     The applicant further complains under Article 6 para. 1 of the Convention about the length of the proceedings before the Hessen Administrative Court of Appeal concerning the search warrants.     THE LAW   1.     The applicant complains about the length of the proceedings before the Federal Constitutional Court concerning the Federal Government's request under Article 18 of the Basic Law.   He invokes Article 6 para. 1 (Art. 6-1) of the Convention.         This provision, as far as relevant, provides as follows:         "In the determination of his civil rights and obligations or of       any criminal charge against him, everyone is entitled to a ...       hearing within a reasonable time by [a] ... tribunal ... "         The Convention organs have already had to consider on a number of occasions the question of the applicability of Article 6 para. 1 (Art. 6-1) to the proceedings before a constitutional court.         The Commission recalls that proceedings come within the scope of Article 6 para.   1 (Art. 6-1), even if they are conducted before a constitutional court, where their outcome is decisive for "civil rights and obligations" (cf. Eur. Court HR, Süßmann v. Germany judgment   of 16 September 1996, Reports 1996-IV, No. 15, p. 1117, para. 41; Pammel and Probstmeier v. Germany judgments of 1 July 1997, para. 53 and para. 48, respectively Reports 1997-IV, No. 4; see also No. 24359/94, Dec. 30.6.95, D.R. 82-A, p. 56).         The Commission considers that the rights at issue before the Federal Constitutional Court were the applicant's rights to freedom of expression, to freedom of the press and   freedom of reporting by means of broadcasts and films, to freedom of assembly and to freedom of association inasmuch as his political views and activities were concerned as well as his right to stand for political elections.   The Commission finds that the exercise of these rights in pursuance of political aims is closely bound up with the free democratic constitutional system of the Federal Republic of Germany and that the exercise of these rights for political purposes cannot be considered as a civil right for the purposes of Article 6 para. 1 (Art. 6-1) (cf., mutatis mutandis, No. 24359/94, loc. cit.).         Consequently, the Federal Constitutional Court was not called upon to decide a dispute as to one of the applicant's civil rights and obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention when it examined the Government's request under Article 18 of the Basic Law.         Given the particular nature of the request under Article 18 of the Basic Law and its legal implications, the further question arises whether the constitutional proceedings in question involved a determination of a "criminal charge" within the meaning of Article 6 (Art. 6).         The Commission recalls that the notion of "criminal charge" in Article 6 (Art. 6) has an autonomous meaning.   In order to determine whether the charge of having abused constitutional rights in order to fight against the free democratic constitutional order is to be regarded as "criminal" within the meaning of Article 6 (Art. 6), the Commission will apply the three alternative criteria laid down in the case-law of the Convention organs, namely the legal classification of the offence under domestic law, the nature of the offence and the nature and degree of severity of the penalty (cf. Eur. Court HR, Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, pp. 34-35, para. 82; Demicoli v. Malta judgment of 27 August 1991, Series A no. 216, pp. 15-17, paras. 31-34; Putz v. Austria judgment of 22 February 1996, Reports 1996-I, No. 4, pp. 324-326, paras. 31-37; see also, mutatis mutandis, Jamil v. France judgment of 8 June 1995, Series A no. 317-B, pp. 27-28, paras. 31-32).         As regards the first criterion, the definition of the acts under domestic law, the Commission notes that the legal basis of the proceedings brought against the applicant was Article 18 of the Basic Law and that the ensuing proceedings before the Federal Constitutional Court were governed by the relevant provisions of the Federal Constitutional Court Act.   These provisions formed part of German constitutional law.         The second and more important factor is the "very nature of the offence" (Eur. Court HR, Demicoli judgment, op. cit., p. 16, para. 33).         The Commission notes that Article 18 of the Basic Law concerns the abuse of constitutional rights in order to fight against the free democratic constitutional order.   In order to defend against attempts to damage or overthrow the free democratic constitutional system, this provision enables two of the highest federal organs and the Länder Governments to turn to the Federal Constitutional Court and apply for the forfeiture of certain of an individual's constitutional rights.         In this context the Commission observes that, when the Federal Republic was founded after the nightmare of nazism, that country's experience under the Weimar Republic led to its Constitution being based on the principle of a "democracy capable of defending itself" ("wehrhafte Demokratie"; cf. Eur. Court HR, Vogt v. Germany judgment of 26 September 1995, Series A no. 323, p. 25, para. 51).   The defence of an effective political democracy is also a concept underlying the system of the Convention (cf. Eur. Court HR, Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 28, para. 59; Brogan and Others v. the United Kingdom judgment of 28 November 1988, Series A no. 145-B, p. 27, para. 48).   Moreover, similarly to Article 18 of the Basic Law, it is the purpose of Article 17 (Art. 17) of the Convention, insofar as it refers to groups or to individuals, to prevent them from deriving from the Convention a right to engage in any activity or perform any act aimed at destroying any of the rights and freedoms set forth in the Convention (cf. Eur. Court HR, Lawless v. Ireland judgment of 1 July 1961, Series A no. 3, p. 45, para. 7; No. 250/57, Dec. 20.7.57, Yearbook 1, p. 222).         In the present case, certain aspects of the activities with which the applicant was charged by the Federal Government were criminal offences, namely the use of signs of anticonstitutional organisations and incitement to hatred, and had given rise to criminal prosecution. The Government's request under Article 18 of the Basic Law however concerned the applicant's political activities as a whole and the exercise of his constitutional rights.   The Commission finds that the proceedings concerning this kind of proscribed conduct fall outside the ambit of Article 6 (Art. 6).         Turning to the third criterion, the Commission notes that, when a request under Article 18 of the Basic Law is well-founded, the legal effect of the Constitutional Court's decision only relates to the exercise of specific constitutional rights in pursuit of anticonstitutional activities and the right to stand for elections. While some forms of deprivation of fundamental rights may also be envisaged under criminal law, a sanction of this kind is secondary and and can only be imposed in conjunction with a primary sentence.   The forfeiture of specific constitutional rights which could be pronounced by the Federal Constitutional Court cannot be regarded as a primary "penalty" within the meaning of Article 6 (Art. 6) of the Convention (cf., mutatis mutandis, No. 24359/94, Dec. 30.6.95, D.R. 82, p. 56; No. 32258/96, Dec. 13.1.97, D.R. 88, p. 176).         Consequently, Article 6 (Art. 6) of the Convention does not apply to the constitutional proceedings brought against the applicant under Article 18 of the Basic Law.         It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention, and must be rejected pursuant to Article 27 para. 2 (Art. 27-2).   2.     The applicant also complains under Article 6 para. 1 (Art. 6-1) of the Convention about the length of the proceedings before the Hessen Administrative Court of Appeal.         The Commission notes that the proceedings before the Hessen Administrative Court of Appeal concerned the question of the lawfulness of a search of the applicant's premises ordered by the Darmstadt Administrative Court in the context of investigations under the Association Act against a political association, and the seizure of objects on the occasion of the search.         As regards the applicability of Article 6 (Art. 6), the Commission recalls that measures consequential upon a criminal offence committed by another party cannot as such lead to the conclusion that a "criminal charge" for the purposes of Article 6 (Art. 6) could be considered as having been brought against the persons affected by these measures (cf. Eur. Court HR, AGOSI v. the United Kingdom judgment of 24 October 1986, Series A no. 108, p. 22, paras. 65-66; Air Canada v. the United Kingdom judgment of 5 May 1995, Series A no. 316-A, pp. 20- 21, paras. 52-55).     The Commission finds that these considerations apply likewise to the investigation measures which were implemented against the applicant in the context of proceedings against a political association.   The applicant himself was not a party to these proceedings and no criminal proceedings were brought against him in this context.   Accordingly, the administrative court proceedings did not involve "the determination of [a] criminal charge".         On the matter of the seizure of objects, the Commission recalls that Article 6 (Art. 6) applies to any action whose subject matter is "pecuniary" in nature and which is founded on an alleged infringement of rights that are likewise of a pecuniary character (cf. Eur. Court HR, Raimondo v. Italy judgment of 22 February 1994, Series A no. 281-A, p. 20, para. 43; Air Canada judgment, op. cit., p. 20, para. 56).         Hoever, even assuming that this aspect of the proceedings before the Hessen Administrative Court of Appeal involved a determination of the applicant's "civil rights and obligations", the Commission is not required to decide whether his submissions disclose an appearance of a violation of his right to a hearing within a "reasonable time".         The Commission finds that the applicant has failed to show that he lodged a constitutional complaint with the Federal Constitutional Court concerning the allegedly unreasonable length of these proceedings, and has not, therefore, exhausted the remedies available to him under German law (cf. Eur. Court HR, König v. Germany judgment of 28 June 1978, Series A no. 27, p. 22, para. 61, and p. 23, para. 64; No. 8499/79, Dec. 7.1080, D.R. 21, p. 176).         This part of the application is, therefore, inadmissible under Article 27 para. 3, in conjunction with Article 26 (Art. 27-3+26), of the Convention.       For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION INADMISSIBLE.             M. de SALVIA                         S. TRECHSEL           Secretary                           President       to the Commission                    of the Commission