AS TO THE ADMISSIBILITY OF
Application No. 38570/97
by Armin HINDRICHS
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 4 March 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 10 July 1997 by
Armin HINDRICHS against Germany and registered on 13 November 1997
under file No. 38570/97;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1932, is a German national and resident
in Rheinbreitbach near Bonn. When lodging his application, he was
detained in a prison in Wittlich. In the proceedings before the
Commission, he is represented by Mr F. Wolff, a lawyer practising in
Berlin.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In 1991 criminal proceedings were initiated against the applicant
on suspicion of having committed espionage (geheimdienstliche
Agententätigkeit).
The trial against the applicant was held before the Düsseldorf
Court of Appeal (Oberlandesgericht), sitting as a court of first
instance, on several days in October 1994. In these proceedings, the
applicant was assisted by defence counsel.
On 27 October 1994 the Düsseldorf Court of Appeal convicted the
applicant of espionage on behalf of the former German Democratic
Republic, pursuant to S. 99 para. 1 (1) of the German Penal Code
(Strafgesetzbuch).
According to this provision, anybody who commits, on behalf of
a secret service of a foreign power, espionage against the Federal
Republic of Germany, aiming at communicating or forwarding facts,
objects or findings, shall be liable to imprisonment for a period not
exceeding five years or a fine.
The applicant was sentenced to four years' imprisonment. The
forfeiture of a sum of money amounting to DEM 100,000 was ordered. The
applicant was also, for a period of three years, deprived of the rights
to hold a public office, to vote and to be elected.
The Court found that in 1959 the applicant, who had then been
living in the German Democratic Republic, had agreed to work for the
Ministry for State Security (Ministerium für Staatssicherheit), the
secret service of the former German Democratic Republic. He had moved
to West Berlin in 1960 upon the order of the said Ministry. Until 1989
he had informed the Ministry about the structures, tendencies and
activities first of the Christian Democrat Students' Association
(RCDS), later of the Social Democrats. He had also provided information
about persons trying to leave the German Democratic Republic and people
organising these escapes (Fluchthelfer). The Court of Appeal found that
the applicant had thereby committed espionage. In fixing his sentence,
the Court considered that his main motive for cooperation with the
Ministry had been to prove his loyalty to the German Democratic
Republic. The Court regarded as particularly aggravating circumstances
the lengthy period of his involvement in espionage, the intensity of
his collaboration with the Ministry for State Security and the fact
that until 1964 he had also revealed the names of persons organising
escapes from the German Democratic Republic, thus accepting their
possible arrest.
On 3 January 1996 the Federal Court of Justice (Bundesgerichtshof)
upon the applicant's appeal on points of law (Revision) quashed the
judgment of 27 October 1994 as far as the fixing of the sentence was
concerned and sent the case back to a different Senate of the
Düsseldorf Court of Appeal. The Court, in its reasoning, referred to
the decision of the Federal Constitutional Court (Bundesverfassungsge-
richt) in leading cases dated 15 May 1995. It held that the trial court
had omitted to make sufficient findings as to whether the applicant,
when committing espionage, was still to be considered as a citizen of
the German Democratic Republic.
The Federal Constitutional Court in the above-mentioned decision
held that espionage against the Federal Republic of Germany on behalf
of the German Democratic Republic remained a punishable act even after
the unification of Germany. This resulted from the particularities of
national security rules (Staatsschutzrecht) and did not breach any
rules of public international law. The Court observed that, under
public international law, a State was entitled to enact legislation
relating to criminal offences committed within its territory as well
as to offences committed by foreigners abroad to the extent that its
existence or important interests were at risk. Furthermore, there were
no rules on the punishment of espionage by a State following the
accession of another State. However, the principle of proportionality
required a court to take into account at different stages of the
proceedings whether a person had been a citizen of the former German
Democratic Republic and whether the espionage had been committed within
the territory of the latter State only or also within the territory of
the Federal Republic of Germany itself. With regard to citizens of the
former German Democratic Republic who had committed espionage within
the territory of the Federal Republic of Germany or one of its allies,
or in a third State where they had risked extradition or punishment,
there was no general bar to prosecution. However, those persons had,
as a consequence of the fall of the German Democratic Republic, lost
the protection of that State, if only the expectation that they would
be exchanged in case of their arrest. Moreover, even if they knew
about the legal order of the Federal Republic of Germany, their sense
of wrongdoing was attuned to the legal order of the former German
Democratic Republic. Above all, they were prosecuted by their own State
in respect of espionage activities committed at a time when they
regarded that State as a foreign State. In such cases all relevant
circumstances had to be weighed in the light of the above
considerations with a view to determining whether or not a prosecution
should be continued, and in fixing the sentence.
On 24 May 1996 in the resumed proceedings the Düsseldorf Court
of Appeal sentenced the applicant to three years' imprisonment; the
forfeiture of money and deprivation of certain political rights were
confirmed. When fixing his sentence, the Court took into account that
the applicant had continued to be, and regarded himself as, a citizen
of the German Democratic Republic.
On 23 October 1996 the Federal Court of Justice dismissed the
applicant's appeal on points of law.
On 20 December 1996 the Federal Constitutional Court (Bundesver-
fassungsgericht) refused to entertain his constitutional complaint
(Verfassungsbeschwerde).
COMPLAINTS
1. The applicant complains under Article 5 of the Convention that
his detention is unlawful on the ground that it violates general rules
of public international law which, by means of Article 25 of the Basic
Law, form part of the law of the Federal Republic of Germany. According
to the applicant, Article 31 of the 1907 Hague Regulation Respecting
the Laws and Customs of War on Land, which prohibits the prosecution
for espionage of spies of the former enemy captured as prisoners of
war, has to be applied mutatis mutandis to spies of the former German
Democratic Republic after the unification of Germany and the end of the
"Cold War".
2. The applicant further complains that his conviction amounts to
a violation of his right to a fair and public hearing by an independent
and impartial tribunal within the meaning of Article 6 of the
Convention. He submits that all judges dealing with his case were
citizens of the Federal Republic of Germany at the time when the
espionage was committed. They had taken an oath as to their committment
to the free democratic basic order (freiheitlich-demokratische
Grundordnung) of the Federal Republic of Germany.
3. The applicant also complains under Article 14 of the Convention
that his conviction of espionage amounted to discrimination on
political grounds. While espionage on behalf of the former German
Democratic Republic was prosecuted as a criminal offence, the penal
provisions of the former German Democratic Republic regarding espionage
committed by agents of the Federal Intelligence Service had been
repealed in the context of the Unification treaty. Therefore, citizens
of the former German Democratic Republic having committed espionage on
behalf of the Federal Republic of Germany or its allies were not
prosecuted or, to the extent that they had been convicted by the courts
of the former German Democratic Republic, they had been rehabilitated
or could be rehabilitated.
THE LAW
1. The applicant complains under Article 5 para. 1 (Art. 5-1) of the
Convention that his conviction of espionage, and consequently his
subsequent detention, was unlawful.
Article 5 para. 1 (Art. 5-1), so far as relevant, provides as
follows:
"1. Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure
prescribed by law:
a. the lawful detention of a person after conviction by a
competent court; ..."
The Commission recalls that the terms "in accordance with a
procedure prescribed by law" and "lawful detention" in Article 5
para. 1 (Art. 5-1) refer to the applicable domestic law, and it follows
that disregard of the domestic law may entail a breach of the
Convention. However, the scope of review by the Convention organs is
limited and it is in the first place for the national authorities,
notably the courts, to interpret and apply domestic law (see Eur. Court
HR, Winterwerp v. the Netherlands judgment of 24 October 1979, Series
A no. 33, p. 18, para. 39, p. 20, paras. 45-46; No. 9997/82, Dec.
7.12.82, D.R. 31, p. 245; No. 29742/96, Dec. 24.6.96, D.R. 86-A,
p. 163).
In the present case, the Düsseldorf Court of Appeal found that the
applicant's conduct constituted the offence of espionage within the
meaning of S. 99 of the Penal Code of the Federal Republic of Germany.
The applicant's conviction was upheld by the Federal Court of Justice
by reference to the case-law of the Federal Constitutional Court. In
a decision of 15 May 1995, the Federal Constitutional Court in several
leading cases had confirmed that espionage committed by citizens of the
former German Democratic Republic within the territory of the Federal
Republic of Germany remained punishable after the German unification,
and that there was no general rule of public international law
prohibiting criminal prosecution of foreign spies in case of a peaceful
unification. In accordance with the same case-law, the Düsseldorf Court
of Appeal, in its judgment of 24 May 1996, reduced the applicant's
sentence, taking into account as mitigating circumstance that, when
committing espionage, he had still been a citizen of the German
Democratic Republic.
The Commission considers that the applicant's submissions, in
particular his views regarding the application of Article 31 of the
Hague Regulation, do not disclose any element which should render his
detention not "lawful" within the meaning of Article 5 para. 1 (a)
(Art. 5-1-a) of the Convention.
The Commission concludes that the applicant was deprived of his
liberty "in accordance with a procedure prescribed by law" and that he
was lawfully detained "after conviction by a competent court".
It follows that the applicant's complaint under Article 5 para. 1
(Art. 5-1) is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
2. As regards the applicant's complaint under Article 6 (Art. 6) of
the Convention about the alleged lack of impartiality of the judges
sitting in the proceedings against him, the Commission has had regard
to the relevant criteria established in the case-law of the Convention
organs (Eur. Court HR, Hauschildt v. Denmark judgment of 14 May 1989,
Series A no. 154, p. 21, para. 64; Thomann v. Switzerland judgment of
10 June 1996, Reports 1996-III, No. 11, p. 815, para. 30). In the
present case, the Commission finds that the applicant's submissions
concerning the citizenship of the judges and their loyalty to the
constitutional order of the Federal Republic of Germany do not disclose
any reasonable doubts as to their impartiality in the criminal
proceedings against the applicant. Consequently, this part of the
application is also manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2).
3. The applicant further complains under Article 14 (Art. 14) of the
Convention that his conviction of espionage amounted to discrimination
on political grounds.
According to Article 14 (Art. 14), the "enjoyment of the rights
and freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status".
The Commission recalls that Article 14 (Art. 14) complements the
other substantive provisions of the Convention and its Protocols. It
has no independent existence, since it has effect solely in relation
to the rights and freedoms safeguarded by those provisions. There can
be no room for application of Article 14 (Art. 14) unless the facts of
the case fall within the ambit of one or more of such provisions (Eur.
Court HR, Inze v. Austria judgment of 28 October 1987, Series A no.
126, p. 17, para. 36).
In the present case, the applicant's complaint about
discrimination relates in substance to his complaints about his
conviction for espionage, raised under Articles 5 and 6 (Art. 5, 6).
His complaint about discrimination therefore falls within the ambit of
Article 14 (Art. 14).
Article 14 (Art. 14) safeguards individuals, placed in similar
situations, from discrimination in the enjoyment of the rights and
freedoms set forth in the Convention and its Protocols. A distinction
is discriminatory if it "has no objective and reasonable
justification", that is, if it does not pursue a legitimate aim or if
there is not a reasonable relationship of proportionality between the
means employed and the aim sought to be realised. The Contracting
States enjoy a certain margin of appreciation in assessing whether and
to what extent differences in otherwise similar situations justify a
different treatment in law (cf. Eur. Court HR, Stjerna v. Finland
judgment of 25 November 1994, Series A no. 299-B, pp. 63-64, para. 48).
The applicant submits that persons having committed espionage
against the German Democratic Republic on behalf of the Federal
Republic of Germany or its allies were not prosecuted or, to the extent
that they had been convicted by the courts of the former German
Democratic Republic, they had been rehabilitated or could be
rehabilitated.
The Commission has already found that, apart from the question
whether individuals in these two groups were in analogous situations,
the difference of treatment between them, in the application of the
laws in force, had an objective and reasonable justification and did
not amount to discrimination on political grounds (cf. No. 29742/96,
Dec. 24.6.96, D.R. 86-A, p. 163).
It follows that there is no appearance of a violation
of Article 14, taken in conjunction with Articles 5 and 6
(Art. 14+5+6), of the Convention.
Consequently, this part of the application is likewise manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy