GAST AND POPP v. GERMANY

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 29357/95

Gabriele GAST and Dieter POPP

against

Germany

REPORT OF THE COMMISSION

(adopted on 28 May 1998)

TABLE OF CONTENTS

Page

I.INTRODUCTION

(paras. 1-9)1

II.ESTABLISHMENT OF THE FACTS

(paras. 10-58)3

A.The particular circumstances of the case

(paras. 10-29)3

B.Relevant domestic law

(paras. 30-58)6

III.OPINION OF THE COMMISSION

(paras. 59-92)17

A.Complaint declared admissible

(para. 59)17

B.Point at issue

(para. 60)17

C.Article 6 para. 1 of the Convention

(paras. 61-92)17

a.Applicability of Article 6 of the Convention

(paras. 63-76) . . . . . . . . . . . . . . . 17

b.Compliance with Article 6 para. 1 of the

Convention

(paras. 77-92). . . . . . . . . . . . . .  . 19

CONCLUSION

(para. 93) 22

DISSENTING OPINION OF MM. 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:

MMS. TRECHSEL, President

J.-C. GEUS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

MrsG.H. THUNE

MMC.L. ROZAKIS

MrsJ. LIDDY

MML. 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

MrsM. HION

MMR. 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 1 July 1997, Reports of Judgments and Decisions 1997, pp. 1108-1109, paras. 49-53, and pp. 1134-1135,  paras. 44-48, respectively).              

67.In the present case, the question arises whether Article 6 para. 1 applies to proceedings before the Federal Constitutional Court under its criminal head. 

68. The Commission, having regard to the case-law of the Convention organs (cf. Eur. Court HR, Putz v. Austria judgment of 22 February 1996, Reports of Judgments and Decisions 1996-I, p. 324, para. 31 with further references) observes at the outset that the proceedings brought against the applicants, the trial at first instance and the appeal proceedings at second instance, involved the determination of a criminal charge within the meaning of Article 6 para. 1, namely espionage pursuant to S. 99 of the German Penal Code.  Article 6 para. 1 therefore applied to these proceedings.

69. However, the applicants do not complain about the length of the proceedings conducted by the prosecution authorities and the courts of criminal jurisdiction, but about the length of the ensuing proceedings before the Federal Constitutional Court regarding their respective constitutional complaints.  With regard to this particular feature, the present case is similar to some of the above - civil - cases relating to the length of proceedings before the Federal Constitutional Court (cf. Eur. Court HR, Süßmann judgment, op. cit., p. 1171, para. 40; Pammel and Probstmeier judgments, op. cit., paras. 52 and 47, respectively).

70. In this context, the Commission recalls that, as regards the applicability of Article 6 to proceedings in cassation, it is the Court's consistent case-law that criminal proceedings form an entity and that the protection afforded by Article 6 does not cease with the decision at first instance; indeed, a State which institutes courts of appeal or cassation is required to ensure that persons amenable to the law shall enjoy before these courts the fundamental guarantees contained in Article 6 (cf. Eur. Court HR, Delcourt v. Belgium judgment of 17 January 1970, Series A no. 11, pp. 14-15, para. 25; Monnell and Morris v. the United Kingdom judgment of 2 March 1987, p. 21, para. 54; Ekbatani v. Sweden judgment of 26 May 1988, Series A no. 143, p. 13, para. 27; Brualla Gómez de la Torre v. Spain judgment of 19 December 1997, para. 37, to be published in Reports of Judgments and Decisions 1997).

71. In its above judgment in the Delcourt v. Belgium case, the Court noted in its reasons that "[the] judgment of the Court of Cassation ... may rebound in different degrees on the position of the person concerned" and that "the term 'bien-fondé', which is found in the French text of Article 6 para. 1, refers not only to the accusation being well-founded in fact but also to its being well-founded in law. Thus, the supervision of validity which the Court of Cassation undertakes may lead it to hold that the lower courts, when examining the facts on which the charge was grounded, have acted in breach either of criminal law or of forms of procedure which are of an essential nature or are laid down on pain of nullity of the decision ...; at least in the first of these cases the prosecution proves to be undoubtedly unfounded" (cf. Eur. Court HR, Delcourt judgment, loc. cit.).

72.In the present case, the applicants, in their respective constitutional complaints, submitted that their convictions of espionage violated their constitutional rights.  The Federal Constitutional Court refused acceptance of the first and second applicants' constitutional complaints, referring them to the leading decision of the Second Division of 15 May 1995, which was attached to the decisions in the applicants' cases (see para. 0 above).  In the leading cases, the Federal Constitutional Court examined in detail various constitutional aspects of prosecution for treason and espionage as provided for under SS. 94 and 99 of the Penal Code with particular regard to the accession of the German Democratic Republic to the Federal Republic of Germany.  It held that 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.  However, applying the principle of proportionality, the Constitutional Court found that all relevant circumstances had to be weighed with a view to determining whether or not prosecution should be continued, or in fixing the sentence (see paras. 0-0 above).

73. The Commission considers that the proceedings before the Federal Constitutional Court thereby directly related to the question of the accusations of espionage being well-founded.  In the event of a successful outcome of the constitutional complaint proceedings, as shown by two of the leading cases, the Federal Constitutional Court does not confine itself to identifying the provision of the Basic Law that has been breached; it quashes the impugned decision and refers the matter back to the competent court.  Moreover, if a constitutional complaint against a law is upheld, the legislation in question is declared void and a re-opening of criminal proceedings is permissible (S. 95 in conjunction with S. 79 of the Federal Constitutional Court Act, see paras. 0-0 above).

74.Constitutional complaint proceedings in criminal cases cannot, therefore, lie completely outside the scope of Article 6 para. 1.  In the factual circumstances underlying the numerous complaint proceedings before the Federal Constitutional Court, relating to conviction of espionage or treason following German unification, these proceedings were a further stage of the respective criminal proceedings and their consequences could be decisive for the convicted persons.

75. It is true that in the present case, the Second Section of the Second Division of the Federal Constitutional Court refused acceptance of the applicants' constitutional complaints in the course of preliminary proceedings (SS. 93a and 93b of the Federal Constitutional Court Act, see para. 0).  However, the Federal Constitutional Court was able to do so after having examined and rendered a leading decision on the merits of all relevant arguments on 15 May 1995.  In the ensuing cases, express reference was made to the leading decision which was attached. 

76. In these circumstances, Article 6 para. 1 is applicable to the proceedings in issue.

b.Compliance with Article 6 para. 1 of the Convention

77.The Commission finds that the relevant period began on 18 July and 13 August 1992, respectively, the dates on which the applicants appealed to the Federal Constitutional Court.  It ended on 9 June and 3 June 1995, respectively, the dates on which the Constitutional Court's decisions of 23 May 1995 were notified to the first applicant and the second applicant's counsel.  It therefore lasted about two years and ten months in the first applicant's case and about two years and nine months in the second applicant's case.

78.The reasonableness of the length of these proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court's case-law, in particular the complexity of the case, the applicants' conduct and that of the competent authorities (cf. Eur Court HR, Mansur v. Turkey judgment of 8 June 1995, Series A no. 319-B, p. 51, para. 61).

79.The applicants contend that the length of the proceedings before the Federal Constitutional Court was excessive and amounted in fact to a denial of justice.  According to them, their cases were not particularly complex and could have been decided at an earlier stage.  They stress the importance of their constitutional court proceedings for their right to liberty.

80.The Government maintain 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 transpires best from the Constitutional Court's decision of 15 May 1995 in the leading cases. 

81.Moreover, the Government, referring to the special features of the procedure in the Federal Constitutional Court and the specific nature of the present case, considered that no unreasonable delays were 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. 

82.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 were 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 of 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 of 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.

83.The Commission notes that the applicants' respective constitutional complaints were rejected in preliminary proceedings, after the relevant constitutional questions had been resolved in a leading decision rendered in four other cases.  The legal issues examined in this decision, to which the applicants were referred in the decisions rejecting their own complaints, were on the whole complex, also as far as the specific situation of persons such as the applicants was concerned.

84.The applicants' conduct did not cause any delay in the proceedings.

85. As regards the conduct of the Federal Constitutional Court, the Commission recalls that Article 6 para. 1 imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements, including the obligation to hear cases within a reasonable time.  Although this obligation applies also to a Constitutional Court, when so applied it cannot be construed in the same way as for an ordinary court.  Its application rather depends on the special features of the proceedings concerned, and account must be taken of the entirety of the proceedings conducted in the domestic legal order and the Federal Constitutional Court's role in them (cf. mutatis mutandis, Eur. Court HR, Delcourt v. Belgium judgment, op. cit., para. 26; Brualla Gómez de la Torre judgment, loc. cit.).  The Commission takes into account that a Constitutional Court assumes important functions as guardian of the Constitution.  Its decisions often have far-reaching implications for the legal system as a whole and require a thorough examination of many elements of facts and legal argument, considering the views not only of the parties immediately involved in the proceedings but also representatives of different strata of the population. The specificity of the task of a constitutional court furthermore has the consequence that in deciding upon priorities in its work such a court will have to apply considerations which differ from those relevant for ordinary courts, such as simple chronological priority; sometimes it will have to give precedence to cases on account of their nature and their importance in political and social terms (cf. Eur. Court HR, Süßmann judgment, op. cit., p. 1174, para. 55; Pammel judgment, op. cit., para. 67; Probstmeier judgment, op. cit., para. 63).

86.Furthermore, while Article 6 requires that judicial proceedings be expeditious, it also lays emphasis on the more general principle of the proper administration of justice (cf. Eur. Court HR, Süßmann judgment, op. cit., para. 57, with reference to the Boddaert v. Belgium judgment of 12 October 1992, Series A no. 235-D, p. 82, para. 39).

87.In the instant case, the Commission finds that it was reasonable for the Federal Constitutional Court to have grouped these cases so as to obtain a comprehensive view of the legal issues arising from the convictions of espionage and treason following German unification (cf., mutatis mutandis, Eur. Court HR, Süßmann judgment, op. cit., p. 1174, para. 59).

88.The Commission has further noted the Government's explanations on the overall planning of work by the Second Division of the Federal Constitutional Court at the relevant time.

89. It appears that some of the proceedings referred to concerned matters which had not been terminated due to the general back-log of the Second Division.   In this respect, the Commission recalls that  a chronic overload, like the one the Federal Constitutional Court has laboured under since the end of the 1970s, cannot justify an excessive length of proceedings (cf. Eur. Court HR, Pammel judgment, op. cit. para. 68; Probstmeier judgment, op. cit., para. 64).

90.As regards the other cases dealt with by the Second Division at the material time, the Commission, balancing what was at stake for the numerous persons sentenced to imprisonment for treason or espionage and the serious political and social implications of those cases, finds that the Federal Constitutional Court could reasonably give priority to such cases.  The Commission considers that although the applicants were already serving their prison sentences pending the constitutional court proceedings, their punishment did not cause prejudice to them to such an extent as to impose on the court concerned a duty to deal with the cases as a matter of very great urgency, as is true of certain types of litigation (cf. Eur. Court HR, Süßmann judgment, op. cit., para. 61 with reference to the A and Others v. Denmark judgment of 8 February 1996, Reports 1996, p. 107, para. 78).  In this respect, the Commission also noted the Government's submission that the applicants could have applied to the Federal Constitutional Court for an interim stay of the execution of their prison sentences (cf., mutatis mutandis, Eur. Court HR, König v. Germany judgment of 28 June 1978, Series A no. 27, p. 40, para. 111).

91.In the light of all the circumstances of the case, the Commission finds that any delays that occurred do not appear substantial enough for the length of the proceedings before the Federal Constitutional Court to have exceeded a "reasonable time" within the meaning of Article 6 para. 1 (cf. Eur. Court HR, Cesarini v. Italy judgment of 12 October 1991, Series A no. 245-B, p. 26, para. 20; Salerno judgment of 12 October 1992, Series A no. 245-D, p. 56, para. 21).  In reaching this conclusion, the Commission had regard to the fact that the criminal proceedings against the first and second applicants, including the pre-trial stage, the trial and the appeal proceedings, had only lasted about one year and ten months in the first applicant's case and and about two years and three months in the second applicant's case.

92.In sum, the applicants' submissions do not, therefore, disclose a breach of their right to a hearing within a "reasonable time", as guaranteed by Article 6 para. 1.

CONCLUSION

93.The Commission concludes, by 20 votes to 11, that in the present case there has been no violation of Article 6 para. 1 of the Convention.

M. de SALVIAS. TRECHSEL

  Secretary President

       to the Commission      of the Commission

 (Or. English)

DISSENTING OPINION OF MM. 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. PERENI_, M. VILA AMIGÓ)

We agree with the majority in finding Article 6 para. 1 of the Convention to be applicable to the proceedings before the Federal Constitutional Court in the present case. The question is therefore whether the proceedings before that Court were terminated within a reasonable time. The time at issue was approximately two years and ten months in regard to the first applicant and about two years and nine months in regard to the second applicant.

The Government have referred to a number of elements which, when taken together, would indicate, in the Government's view, that the time it took the Federal Constitutional Court to decide on the matter was reasonable. We have examined these various elements which include the fact that, following the reunification of Germany, a large number of cases concerning the punishment of espionage were referred to the Federal Constitutional Court, the fact that proceedings before that Court have special features which distinguish them from other court proceedings, and the fact that the Second Division of the Court, before which the applicants' cases were pending, had decided at the relevant time to give priority to some other important and urgent cases.

It appears that the main reason for the delays in the applicants' cases was the burden of work of the Federal Constitutional Court. The Government have provided information about other cases dealt with by the Second Division of the Court at the relevant time. We note that some of the proceedings referred to, which were dealt with during the relevant period, e.g. a dispute regarding subsidies to the national coal-mining industry, had themselves been pending before the Second Division for a considerable time. Other cases processed by the Second Division at that time, in particular the disputes concerning the legislation on abortion, the Maastricht Treaty and the missions of German soldiers in former Yugoslavia, had been given priority in view of their political and social importance. 

We accept that it is not for the Commission to substitute for the assessment of the Federal Constitutional Court any other assessment of what might have been the appropriate organisation of its work, given the volume of litigation before it. Nonetheless, when there is a backlog of cases and priority is given to some cases with the result that the examination of other cases is considerably delayed, the State is required to take appropriate measures to avoid that this situation is prolonged and becomes a matter of structural organisation (cf. Eur. Court HR, Zimmermann and Steiner v. Switzerland judgment of 13 July 1983, Series A no. 66, pp. 12-13, para. 29). In this respect, we recall that the Federal Constitutional Court has laboured with a chronic overload of cases since the end of the 1970s and that that overload cannot therefore in itself justify an excessive length of proceedings (cf. Eur. Court HR, Pammel judgment, op. cit., para. 68; Probstmeier judgment, op. cit., para. 64).

The examination of the applicants' cases as well as of a number of other espionage cases was postponed pending the examination of a few test cases regarding the same matter. While such a manner of dealing with cases raising the same or similar legal issues would seem to be reasonable, the examination of the test cases was apparently delayed due to the general work situation of the Federal Constitutional Court. We note, for instance, that, following deliberations in the test cases in November 1994, it took the Court until 23 May 1995 to close the examination of these cases.  This period included a further suspension of the proceedings between December 1994 and March 1995, a delay which was only partly compensated by the fact that a first draft judgment was prepared. In the ensuing proceedings, the decisions refusing to admit the remaining espionage cases were taken shortly afterwards.

Unlike the position in the Süßmann case, the unique political context of German reunification and the serious social implications of disputes relating thereto (cf. Eur. Court HR, Süßmann judgment, loc. cit., p. 1174, para. 60) cannot justify the length of the proceedings in the present case.  In this context, we observe that the questions of punishment for espionage had arisen as a result of the German reunification, whereas some of the cases to which the Federal Constitutional Court gave priority, for instance the cases regarding the Maastricht Treaty and the missions of German soldiers in former Yugoslavia, had no direct connection with the reunification of Germany.

We also attach weight to what was at stake for the applicants, namely their convictions for espionage and their sentences to six years and nine months' and six years' imprisonment respectively.  Irrespective of whether they could have successfully applied to the Federal Constitutional Court for a provisional stay of execution pending the proceedings before the Federal Constitutional Court, we consider that these proceedings were of great importance for their future life and that this element is of special relevance in the assessment of whether the length of the proceedings was reasonable.

In evaluating the length of the proceedings before the Federal Constitutional Court, we have also been mindful of the length of the preceding stages of the proceedings against the applicants, i.e. about one year and ten months in the first applicant's case and about two years and three months in the second applicant's case.  However, in the determination of questions relating to serious criminal charges, an expeditious conduct of the trial cannot justify any substantial delay of the ensuing proceedings before the Federal Constitutional Court.

In the light of all the circumstances of the case, we reach the conclusion that, despite the complexity of the legal issues involved and the special character of proceedings before the Federal Constitutional Court, the length of the applicants' proceedings before the Federal Constitutional Court does not satisfy the reasonable time requirement laid down in Article 6 para. 1 of the Convention. 

 

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