CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 mars 1998

.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. 38570/97                       by Armin HINDRICHS                       against Germany          The European Commission of Human Rights (First Chamber) sitting in private on 4 March 1998, the following members being present:              MM     M.P. PELLONPÄÄ, President                  N. BRATZA                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. CONFORTI                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs    M. HION            Mr     R. NICOLINI              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 10 July 1997 by Armin HINDRICHS against Germany and registered on 13 November 1997 under file No. 38570/97;        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 1932, is a German national and resident in Rheinbreitbach near Bonn. When lodging his application, he was detained in a prison in Wittlich. In the proceedings before the Commission, he is represented by Mr F. Wolff, a lawyer practising in Berlin.        The facts of the case, as submitted by the applicant, may be summarised as follows.        In 1991 criminal proceedings were initiated against the applicant on suspicion of having committed espionage (geheimdienstliche Agententätigkeit).        The trial against the applicant was held before the Düsseldorf Court of Appeal (Oberlandesgericht), sitting as a court of first instance, on several days in October 1994.   In these proceedings, the applicant was assisted by defence counsel.        On 27 October 1994 the Düsseldorf Court of Appeal convicted the applicant of espionage on behalf of the former German Democratic Republic, pursuant to S. 99 para. 1 (1) of the German Penal Code (Strafgesetzbuch).        According to this provision, anybody   who 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, shall be liable to imprisonment for a period not exceeding five years or a fine.        The applicant was sentenced to four years' imprisonment. The forfeiture of a sum of money amounting to DEM 100,000 was ordered. The applicant was also, for a period of three years, deprived of the rights to hold a public office, to vote and to be elected.        The Court found that in 1959 the applicant, who had then been living in the German Democratic Republic, had agreed to work for the Ministry for State Security (Ministerium für Staatssicherheit), the secret service of the former German Democratic Republic. He had moved to West Berlin in 1960 upon the order of the said Ministry. Until 1989 he had informed the Ministry about the structures, tendencies and activities first of the Christian Democrat Students' Association (RCDS), later of the Social Democrats. He had also provided information about persons trying to leave the German Democratic Republic and people organising these escapes (Fluchthelfer). The Court of Appeal found that the applicant had thereby committed espionage. In fixing his sentence, the Court considered that his main motive for cooperation with the Ministry had been to prove his loyalty to the German Democratic Republic. The Court regarded as particularly aggravating circumstances the lengthy period of his involvement in espionage, the intensity of his collaboration with the Ministry for State Security and the fact that until 1964 he had also revealed the names of persons organising escapes from the German Democratic Republic, thus accepting their possible arrest.        On 3 January 1996 the Federal Court of Justice (Bundesgerichtshof) upon the applicant's appeal on points of law (Revision) quashed the judgment of 27 October 1994 as far as the fixing of the sentence was concerned and sent the case back to a different Senate of the Düsseldorf Court of Appeal. The Court, in its reasoning, referred to the decision of the Federal Constitutional Court (Bundesverfassungsge- richt) in leading cases dated 15 May 1995. It held that the trial court had omitted to make sufficient findings as to whether the applicant, when committing espionage, was still to be considered as a citizen of the German Democratic Republic.        The Federal Constitutional Court in the above-mentioned decision held that espionage against the Federal Republic of Germany on behalf of the German Democratic Republic remained a punishable act even after the unification of Germany. This resulted from the particularities of national security rules (Staatsschutzrecht) and did not breach any rules of public international law. The Court 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. Furthermore, there were no rules on the punishment of espionage by a State following the accession of another State. However, the principle of proportionality required a court to take into account at different stages of the proceedings whether a person had been a citizen of the former German Democratic Republic and whether the espionage had been committed within the territory of the latter State only or also within the territory of the Federal Republic of Germany itself. With regard to 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. However, those persons had, as a consequence of the fall of the German Democratic Republic, lost the protection of that State, if only the expectation that they would be exchanged in case of their arrest.   Moreover, even if they knew about the legal order of the Federal Republic of Germany, their sense of wrongdoing was attuned to the legal order of the former German Democratic Republic. Above all, they were 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 a prosecution should be continued, and in fixing the sentence.        On 24 May 1996 in the resumed proceedings the Düsseldorf Court of Appeal sentenced the applicant to three years' imprisonment; the forfeiture of money and deprivation of certain political rights were confirmed. When fixing his sentence, the Court took into account that the applicant had continued to be, and regarded himself as, a citizen of the German Democratic Republic.        On 23 October 1996 the Federal Court of Justice dismissed the applicant's appeal on points of law.        On 20 December 1996 the Federal Constitutional Court (Bundesver- fassungsgericht) refused to entertain his constitutional complaint (Verfassungsbeschwerde).     COMPLAINTS   1.    The applicant complains under Article 5 of the Convention that his detention is unlawful on the ground that it violates general rules of public international law which, by means of Article 25 of the Basic Law, form part of the law of the Federal Republic of Germany. According to the applicant, Article 31 of the 1907 Hague Regulation Respecting the Laws and Customs of War on Land, which prohibits the prosecution for espionage of spies of the former enemy captured as prisoners of war, has to be applied mutatis mutandis to spies of the former German Democratic Republic after the unification of Germany and the end of the "Cold War".   2.    The applicant further complains that his conviction amounts to a violation of his right to a fair and public hearing by an independent and impartial tribunal within the meaning of Article 6 of the Convention. He submits that all judges dealing with his case were citizens of the Federal Republic of Germany at the time when the espionage was committed. They had taken an oath as to their committment to the free democratic basic order (freiheitlich-demokratische Grundordnung) of the Federal Republic of Germany.   3.    The applicant also complains under Article 14 of the Convention that his conviction of espionage amounted to discrimination on political grounds. While espionage on behalf of the former German Democratic Republic was prosecuted as a criminal offence, 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. Therefore, 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.     THE LAW   1.    The applicant complains under Article 5 para. 1 (Art. 5-1) of the Convention that his conviction of espionage, and consequently his subsequent detention, was 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 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 HR, Winterwerp v. the Netherlands judgment of 24 October 1979, Series A no. 33, p. 18, para. 39, p. 20, paras. 45-46; No. 9997/82, Dec. 7.12.82, D.R. 31, p. 245; No. 29742/96, Dec. 24.6.96, D.R. 86-A, p. 163).        In the present case, the Düsseldorf Court of Appeal found that the applicant's conduct constituted the offence of espionage within the meaning of S. 99 of the Penal Code of the Federal Republic of Germany. The applicant's conviction was upheld by the Federal Court of Justice by reference to the case-law of the Federal Constitutional Court. In a decision of 15 May 1995, the Federal Constitutional Court in several leading cases had confirmed that espionage committed by citizens of the former German Democratic Republic within the territory of the Federal Republic of Germany remained punishable after the German unification, and that there was no general rule of public international law prohibiting criminal prosecution of foreign spies in case of a peaceful unification. In accordance with the same case-law, the Düsseldorf Court of Appeal, in its judgment of 24 May 1996, reduced the applicant's sentence, taking into account as mitigating circumstance that, when committing espionage, he had still been a citizen of the German Democratic Republic.        The Commission considers that the applicant's submissions, in particular his views regarding the application of Article 31 of the Hague Regulation, do not disclose any element which should render his detention not "lawful" within the meaning of Article 5 para. 1 (a) (Art. 5-1-a) of the Convention.        The Commission concludes that the applicant was deprived of his liberty "in accordance with a procedure prescribed by law" and that he was lawfully detained "after conviction by a competent court".        It follows that the applicant's complaint under Article 5 para. 1 (Art. 5-1) is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    As regards the applicant's complaint under Article 6 (Art. 6) of the Convention about the alleged lack of impartiality of the judges sitting in the proceedings against him, the Commission has had regard to the relevant criteria established in the case-law of the Convention organs (Eur. Court HR, Hauschildt v. Denmark judgment of 14 May 1989, Series A no. 154, p. 21, para. 64; Thomann v. Switzerland judgment of 10 June 1996, Reports 1996-III, No. 11, p. 815, para. 30). In the present case, the Commission finds that the applicant's submissions concerning the citizenship of the judges and their loyalty to the constitutional order of the Federal Republic of Germany do not disclose any reasonable doubts as to their impartiality in the criminal proceedings against the applicant. Consequently, this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).   3.    The applicant further complains under Article 14 (Art. 14) of the Convention that his conviction 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 HR, Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 17, para. 36).        In the present case, the applicant's complaint about discrimination relates in substance to his complaints about his conviction for espionage, raised under Articles 5 and 6 (Art. 5, 6). His complaint about discrimination therefore falls 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", that is, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. 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 (cf. Eur. Court HR, Stjerna v. Finland judgment of 25 November 1994, Series A no. 299-B, pp. 63-64, para. 48).        The applicant submits that persons having committed espionage against the German Democratic Republic 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.        The Commission has already found that, apart from the question whether individuals in these two groups were in analogous situations, the difference of treatment between them, in the application of the laws in force, had an objective and reasonable justification and did not amount to discrimination on political grounds (cf. No. 29742/96, Dec. 24.6.96, D.R. 86-A, p. 163).        It follows that there is no appearance of a violation of Article 14, taken in conjunction with Articles 5 and 6 (Art. 14+5+6), of the Convention.        Consequently, this part of the application is likewise manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION INADMISSIBLE.          M.F. BUQUICCHIO                             M.P. PELLONPÄÄ         Secretary                                  President    to the First Chamber                       of the First Chamber