CEDH · CASELAW;REPORTS;ENG — 28 mai 1998

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E. BUSUTTIL, G. JÖRUNDSSON, A.S. GÖZÜBÜYÜK, J.-C. SOYER, H. DANELIUS, C.L. ROZAKIS, Mrs. J. LIDDY, MM. L. LOUCAIDES, I. CABRAL BARRETO, A. PERENIC, M. VILA AMIGÓ)               23     APPENDIX:   DECISION OF THE COMMISSION AS TO THE           ADMISSIBILITY OF THE APPLICATION. . . . . . . . . . . . 25   I.   INTRODUCTION   1.   The present Report concerns Application No. 29357/95 by Gabriele Gast and Dieter Popp against Germany, introduced on 1 May 1995 and registered on 23 November 1995.   2.   The first applicant is a German national, born in 1943. She is a political scientist by profession and is residing in Neuried.     The second applicant is a German national, born in 1939. He is an insurance agent by profession and is residing in Bonn.     The Government of Germany were represented by their Agent, Ms. H. Voelskow-Thies, Ministerialdirigentin, of the Federal Ministry of Justice.   3.   On 24 June 1996 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the applicants' complaint about the length of complaint proceedings before the Federal Constitutional Court (Bundesverfassungsgericht) concerning their conviction of espionage to the respondent Government and to invite the parties to submit written observations on its admissibility and merits. The remainder of the application was declared inadmissible. Following an exchange of memorials, the Commission, on 20 October 1997, declared admissible the remaining part of the application.   4.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   5.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:       MM   S. TRECHSEL, President       J.-C. GEUS           E. BUSUTTIL       G. JÖRUNDSSON       A.S. GÖZÜBÜYÜK       A. WEITZEL       J.-C. SOYER       H. DANELIUS         Mrs   G.H. THUNE     MM   C.L. ROZAKIS     Mrs   J. LIDDY     MM   L. LOUCAIDES       B. MARXER       M.A. NOWICKI       I. CABRAL BARRETO       B. CONFORTI       N. BRATZA       I. BÉKÉS       J. MUCHA       D. ŠVÁBY       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   6.   The text of this Report was adopted on 28 May 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   7.   The purpose of the Report, pursuant to Article 31 of the Convention, is:     (i)   to establish the facts, and     (ii)   to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.   8.   The Commission's decisions on the admissibility of the application are annexed hereto.   9.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.     II.   ESTABLISHMENT OF THE FACTS   A.   The particular circumstances of the case   I.   The criminal proceedings against the first applicant   10.   In 1990 criminal proceedings were initiated against the first applicant on 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.   11.   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.   12.   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 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.   13.   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.     14.   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.   15.   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 relationship with 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.   16.   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).   17.   On 12 February 1994 the first applicant was released after having served half of her sentence.   II.   The criminal proceedings against the second applicant   18.   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.   19.   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.   20.   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 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 public office, to vote and to be elected.   21.   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.     22.   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 that they would not be punished for their conduct following the accession of the former German Democratic Republic to the Federal Republic of Germany.   23.   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.   24.   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.   25.   On 11 May 1994 the second applicant was released after having served two thirds of his sentence.   III.   The proceedings before the Federal Constitutional Court   26.   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.   27.   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, i. e. the application for a ruling submitted by the Berlin Court of Appeal in   July 1991 as well as two constitutional complaints.   In 1993 a third constitutional complaint, representing general aspects, was added to the 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.     28.   On 15 May 1995 the Second Division of the Federal Constitutional Court rendered the said leading decision (2 BvL 19/91 and others, see below, part 'Relevant domestic law and practice', paras. 0 et seq.).   29.   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.   Relevant domestic law   I.   Espionage   30.   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).   31.   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   32.   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).   33.   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   34.   Pursuant to Article 93 para. 1 of the Basic Law (Grundgesetz), the Federal Constitutional Court shall rule, inter alia, on constitutional complaints which may be lodged by any person who considers that the public authorities have infringed one of his or her fundamental rights or one of his or her rights as guaranteed under Articles 20 para. 4, 33, 38, 101, 103 and 104 [of the Basic Law].   35.   Article 100 para. 1 of the Basic Law provides, inter alia, that, where a court considers unconstitutional a law whose validity is relevant to its decision, the proceedings shall be stayed and the question submitted to the Federal Constitutional Court if the present Basic Law is considered to have been breached. According to paragraph 2 of this provision, where a court has doubts 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, the question shall be submitted to the Federal Constitutional Court.   36.   The composition and functioning of the Federal Constitutional Court are governed by the Federal Constitutional Court Act (Gesetz über das Bundesverfassungsgericht).   The 1985 version of the Federal Constitutional Court Act (applicable with effect from 1 January 1986) was subsequently amended with a view to reducing the Court's workload.   The amendments adopted in 1993 (which entered into force on 11 August 1993), among other things, reorganised the procedure for individual complaints (SS. 93a-93d of the 1993 Federal Constitutional Court Act).     37.   According to S. 2 of the Act, the Federal Constitutional Court is constituted in two divisions, each composed of eight judges.   38.   SS. 90 to 96 of that Act concern constitutional complaints lodged by individuals.     (German)      90     "1.   Jedermann kann mit der Behauptung, durch die öffentliche Gewalt in einem seiner Grundrechte oder in einem seiner in Artikel 20 Abs. 4, Artikel 33, 38, 101, 103 und 104 des Grundgesetzes enthaltenen Rechte verletzt zu sein, die Verfassungsbeschwerde zum Bundesverfassungsgericht erheben.       2.   Ist gegen die Verletzung der Rechtsweg zulässig, so kann die Verfassungsbeschwerde erst nach Erschöpfung des Rechtswegs erhoben werden. Das Bundesverfassungsgericht kann jedoch über eine vor Erschöpfung des Rechtswegs eingelegte Verfassungs-beschwerde sofort entscheiden, wenn sie von allgemeiner Bedeutung ist oder wenn dem Beschwerdeführer ein schwerer und unabwendbarer Nachteil entstünde, falls er zunächst auf den Rechtsweg verwiesen würde.   ..."   (Translation)     Section 90     "1.   Any person who claims that one of his basic rights or one of his rights under Articles 20 para. 4, Articles 33, 38, 101, 103 and 104 of the Basic Law has been violated by public authority may lodge a complaint of unconstitutionality with the Federal Constitutional Court.     2.   If legal action against the violation is admissible, the complaint of unconstitutionality may not be lodged until all remedies have been exhausted.   However, the Federal Constitutional Court may decide immediately on a complaint of unconstitutionality lodged before all remedies have been exhausted if it is of general relevance or if recourse to other courts first would entail a serious and unavoidable disadvantage for the complainant.   ..."   (German)      92     "In der Begründung der Beschwerde sind das Recht, das verletzt sein soll, und die Handlung oder Unterlassung des Organs oder der Behörde, durch die der Beschwerdeführer sich verletzt fühlt, zu bezeichnen."   (Translation)     Section 92     "The reasons for the complaint shall specify the right which is claimed to have been violated and the act or omission of the organ or authority by which the complainant claims to have been harmed."   39.   SS. 93a to 93c of the 1985 Act provided as follows:   (German)      93a des Gesetzes in der Fassung von 1985     "Die Verfassungsbeschwerde bedarf der Annahme zur Entscheidung."       (Translation)     Section 93a of the 1985 Act     "A complaint of unconstitutionality shall require acceptance prior to a decision."   (German)      93b des Gesetzes in der Fassung von 1985     "(1) Die Kammer kann durch einstimmigen Beschluß die Annahme der Verfassungsbeschwerde ablehnen, wenn     1. der Beschwerdeführer den ihm aufgegebenen Vorschuß ( 34 Abs. 6) nicht oder nicht rechtzeitig gezahlt hat,     2. die Verfassungsbeschwerde unzulässig ist oder aus anderen Gründen keine hinreichende Aussicht auf Erfolg hat oder     3. zu erwarten ist, daß der Senat die Verfassungsbeschwerde nach  93c Satz 2 nicht annehmen wird.     Der Beschluß ist unanfechtbar.     (2) Die Kammer kann durch einstimmigen Beschluß der Verfassungsbeschwerde stattgeben, wenn sie offensichtlich begründet ist, weil das Bundesverfassungsgericht die hierfür maßgebliche verfassungsrechtliche Frage bereits entschieden hat...     (3) Die Entscheidungen der Kammer ergehen ohne mündliche Verhandlung. Zur Begründung des Beschlusses, durch den die Annahme der Verfassungsbeschwerde abgelehnt wird, genügt ein Hinweis auf den für die Ablehnung maßgeblichen rechtlichen Gesichtspunkt."   (Translation)     Section 93b of the 1985 Act     "(1) A section may refuse acceptance of a complaint of unconstitutionality by a unanimous order if     1.   the complainant has not paid the required advance at all (S. 34 para. 6) or has not paid it on time,     2.   the complaint of unconstitutionality is inadmissible or does not offer sufficient prospects of success for other reasons, or     3.   the division is not likely to accept the complaint of unconstitutionality in accordance with the second sentence of S. 93c below.     The order shall be final.     (2) The section may uphold the complaint of unconstitutionality by a unanimous order if it is clearly justified because the Federal Constitutional Court has already decided on the relevant question of constitutional law ...     (3) The decisions of the section shall be taken without oral pleadings.   In stating the reasons for an order by which acceptance of a complaint of unconstitutionality is refused, it is sufficient to refer to the legal aspect determining the refusal."   (German)      93c des Gesetzes in der Fassung von 1985     "Hat die Kammer weder die Annahme der Verfassungsbeschwerde abgelehnt noch der Verfassungsbeschwerde stattgegeben, so entscheidet der Senat über die Annahme. Er nimmt die Verfassungsbeschwerde an, wenn mindestens zwei Richter der Auffassung sind, daß von der Entscheidung die Klärung einer verfassungsrechtlichen Frage zu erwarten ist oder dem Beschwerdeführer durch die Versagung der Entscheidung zur Sache ein schwerer und unabwendbarer Nachteil entsteht.  93b Abs. 3 gilt entsprechend."   (Translation)     Section 93c of the 1985 Act     "If the section neither refuses acceptance of a complaint of unconstitutionality nor upholds it, the division shall then decide on acceptance.   It shall accept the complaint of unconstitutionality if at least two judges hold the view that a question of constitutional law is likely to be clarified by a decision or that the denial of a decision on the matter will entail a serious and unavoidable disadvantage for the complainant.   S. 93b para. 3 above shall apply mutatis mutandis." 40.   SS. 93a to 93d of the 1993 Act read:   (German)      93a des Gesetzes in der Fassung von 1993     "(1) Die Verfassungsbeschwerde bedarf der Annahme zur Entscheidung.     (2) Sie ist zur Entscheidung anzunehmen,     a) soweit ihr grundsätzliche verfassungsrechtliche Bedeutung zukommt,     b) wenn es zur Durchsetzung der in  90 Abs. 1 genannten Rechte angezeigt ist; dies kann auch der Fall sein, wenn dem Beschwerdeführer durch die Versagung der Entscheidung zur Sache ein besonders schwerer Nachteil entsteht."     (Translation)     S. 93a of the 1993 Act     "(1)   A complaint of unconstitutionality shall require acceptance prior to a decision.     (2)   It is to be accepted,     a.   if it raises a constitutional issue of general interest,     b.   if this is advisable for securing the rights mentioned in S. 90 para. 1; or also in the event that the denial of a decision on the matter would entail a particularly serious disadvantage for the complainant."     (German)      93b des Gesetzes in der Fassung von 1993     "Die Kammer kann die Annahme der Verfassungsbeschwerde ablehnen oder die Verfassungsbeschwerde im Falle des  93c zur Entscheidung annehmen. Im übrigen entscheidet der Senat über die Annahme."   (Translation)     S. 93b of the 1993 Act     "The section may refuse acceptance of a complaint of unconstitutionality or accept it in the event of S. 93c.   In other cases, the division shall decide on acceptance."   (German)      93c des Gesetzes in der Fassung von 1993     "(1) Liegen die Voraussetzungen des  93a Abs. 2 Buchstabe b vor und ist die für die Beurteilung der Verfassungsbeschwerde maßgebliche verfassungsrechtliche Frage durch das Bundes-verfassungsgericht bereits entschieden, kann die Kammer der Verfassungsbeschwerde stattgeben, wenn die offensichtlich begründet ist. ..."   (Translation)     S. 93c of the 1993 Act     "(1)   If the conditions of S. 93a para. 2 (b) are met and the Federal Constitutional Court has already decided on the relevant question of constitutional law, the section may uphold the complaint of unconstitutionality if it is clearly justified. ..."             (German)      93d des Gesetzes in der Fassung von 1993     "(1) Die Entscheidung nach  93b und  93c ergeht ohne mündliche Verhandlung. Sie ist unanfechtbar. Die Ablehnung der Annahme der Verfassungsbeschwerde bedarf keiner Begründung.   ..."   (Translation)     S. 93d of the 1993 Act     "(1) The decision pursuant to SS. 93b and 93c shall be taken without oral pleadings.   It is unappealable.   The order by which acceptance of a complaint of unconstitutionality is refused, does not require any reasoning.   ..."   41.   S. 94 provides for the right of third parties to be heard in complaint proceedings in the Federal Constitutional Court.   42.   S. 95 concerns the ruling of the Federal Constitutional Court if the complaint is upheld and reads:   (German)     "(1) Wird der Verfassungsbeschwerde stattgegeben, so ist in der Entscheidung festzustellen, welche Vorschrift des Grundgesetzes und durch welche Handlung oder Unterlassung sie verletzt wurde. Das Bundesverfassungsgericht kann zugleich aussprechen, daß auch jede Wiederholung der beanstandeten Maßnahme das Grundgesetz verletzt.     (2) Wird der Verfassungsbeschwerde gegen eine Entscheidung stattgegeben, so hebt das Bundesverfassungsgericht die Entscheidung auf, in den Fällen des  90 Abs. 2 Satz 1 verweist es die Sache an ein zuständiges Gericht zurück.     (3) Wird der Verfassungsbeschwerde gegen ein Gesetz stattgegeben, so ist das Gesetz für nichtig zu erklären. Das gleiche gilt, wenn der Verfassungsbeschwerde gemäß Absatz 2 stattgegeben wird, weil die aufgehobene Entscheidung auf einem verfassungswidrigen Gesetz beruht. Die Vorschrift des  79 gilt entsprechend."   (Translation)     "(1)   If the complaint of unconstitutionality is upheld, the decision shall state which provision of the Basic Law has been infringed and by which act or omission.   The Federal Constitutional Court may at the same time declare that any repetition of the act or omission complained of will infringe the Basic Law.     (2)   If a complaint of unconstitutionality against a decision is upheld, the Federal Constitutional Court shall quash the decision and in cases pursuant to the first sentence of S. 90 para. 2 above it shall refer the matter back to a competent court.     (3)   If a complaint of unconstitutionality against a law is upheld, the law shall be declared null and void.   The same shall apply if a complaint of unconstitutionality pursuant to paragraph 2 above is upheld because the quashed decision is based on an unconstitutional law.   S. 79 shall apply mutatis mutandis."   43.   S. 79, to which S. 95 para. 3 refers, provides:   (German)     "(1) Gegen ein rechtskräftiges Strafurteil, das auf einer mit dem Grundgesetz für unvereinbar oder nach  78 für nichtig erklärten Norm oder auf der Auslegung einer Norm beruht, die vom Bundesverfassungsgericht für unvereinbar mit dem Grundgesetz erklärt worden ist, ist die Wiederaufnahme des Verfahrens nach den Vorschriften der Strafprozeßordnung zulässig.     (2) Im übrigen bleiben vorbehaltlich der Vorschrift des  95 Abs. 2 oder einer besonderen gesetzlichen Regelung die nicht mehr anfechtbaren Entscheidungen, die auf einer gemäß  78 für nichtig erklärten Norm beruhen, unberührt. Die Vollstreckung aus einer solchen Entscheidung ist unzulässig..."   (Translation)     "(1)   In the event that a final conviction is based on a legal provision, which has been declared incompatible with the Basic Law or has been declared null and void pursuant to S. 78, or based on the interpretation of a legal provision, which has been declared   incompatible with the Basic Law by the Federal Constitutional Court, a re-opening of the criminal proceedings is admissible, in accordance with the provisions of the Code of Criminal Procedure.     2. In all other respects, subject to the provisions of S. 95 para. 2 or a specific statutory provision, final decisions based on a rule declared null and void pursuant to S. 78 shall remain unaffected. Such decisions shall not be enforceable ..."   44.   The Federal Constitutional Court may issue an interim injunction (einstweilige Anordnung) in order to avoid serious disadvantages (zur Abwehr schwerer Nachteile), to prevent imminent violence (zur Verhinderung drohender Gewalt) or for another important reason in the general interest (aus einem anderen wichtigen Grund zum gemeinen Wohl), pursuant to S. 32 of the Constitutional Court Act.   IV.   Federal Constitutional Court decision of 15 May 1995   45.   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, in 1991 and later, 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.     46.   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.     47.   The request submitted by the Berlin Court of Appeal was partly declared inadmissible; as regards the remainder, the Federal Constitutional Court held that there was no rule of public international law, forming an integral part of federal law, according to which criminal prosecution of espionage committed on behalf and within the territory of a State which had later peacefully acceded to the State spied upon.   Furthermore, as regards the first of the three constitutional complaints, it found that the complainant's conviction violated his constitutional rights, the first and second instance judgments were set aside and the case referred back to the first instance.   With regard to the second individual case, the sentencing was found to have violated constitutional rights, the judgments of the lower courts were, to that extent, set aside and the matter referred back to the first instance court.   The third constitutional complaint was dismissed.   48.   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.     49.   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.     50.   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.       51.   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.     52.   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.     53.   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.     54.   The Constitutional Court found that, in the unique situation of the German reunification, 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.     55.   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 upon 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 upon 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 upon.     56.   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.     57.   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' sense of wrongdoing (Unrechts-bewußtsein) was attuned 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.   58.   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.   III.   OPINION OF THE COMMISSION   A.   Complaint declared admissible   59.   The Commission has declared admissible the applicant's complaint about the length of their complaint proceedings before the Federal Constitutional Court.     B.   Point at issue   60.   The point at issue is whether there has been a violation of Article 6 para. 1 of the Convention.     C.   Article 6 para. 1 of the Convention   61.   The applicants complain under Article 6 of the Convention about the length of their constitutional complaint proceedings before the Federal Constitutional Court.   62.   Article 6 para. 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..."   a.   Applicability of Article 6 of the Convention   63.   The applicants argue that their constitutional complaints concerned the question of the punishment for espionage in particular circumstances and that Article 6 para. 1 was therefore applicable.   64.   The Government 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.   65.   The Convention organs have already had to consider on a number of occasions the question of the applicability of Article 6 para. 1 to the proceedings before a constitutional court.     66.   The Commission recalls that the special role and status of a constitutional court, which, in those States that have made provision for a right of individual petition, affords additional legal protection to citizens at national level in respect of their fundamental rights guaranteed in the Constitution, does not generally remove such proceedings from the ambit of Article 6 (cf. Eur. Court HR, Süßmann v. Germany judgment of 16 September 1996, Reports of Judgments and Decisions 1996, p. 1170, para. 37, p. 1171, para. 41; Pammel and Probstmeier v. Germany judgments of