AS TO THE ADMISSIBILITY OF
Application No. 32831/96
by J. O.
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 16 October 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
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 12 July 1996 by
J. O. against Germany and registered on 30 August 1996 under file
No. 32831/96;
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 1965, is a German national and resident
in Magdeburg. In the proceedings before the Commission he is
represented by Mr. A. Streubel, a lawyer practising in Berlin.
A. Particular circumstances of the case
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 5 May 1995 the Brandenburg Ministry of the Interior
(Ministerium des Innern), pursuant to S. 3 of the Association Act
(Vereinsgesetz), issued a prohibition order against the association
"Direkte Aktion/Mitteldeutschland (JF)", which was found to pursue
activities directed against the German constitutional order. The order
was directed to the association concerned and, still in May, mailed
care of, inter alia, the applicant. In the reasoning of the
prohibition order, the applicant was mentioned as a leading member of
the said association.
The applicant, represented by counsel, commenced proceedings in
the Frankfurt/Oder Administrative Court of Appeal (Oberverwaltungs-
gericht) to set aside (Anfechtungsklage) the prohibition order to the
extent that he was concerned. He complained that the order, in its
reasoning, incorrectly mentioned him as member of the association and
also that a copy of the order was mailed to him.
On 12 October 1995 the Administrative Court of Appeal declared
the action inadmissible. It found that the applicant had no capacity
to take the said proceedings. Referring to S. 42 para. 2 of the Code
of Administrative Court Procedure (Verwaltungsgerichtsordnung), the
Court found that such an action was only admissible to the extent that
the plaintiff claimed that the prohibition order violated his own
rights. However, the prohibition order had been directed against the
association concerned, and, accordingly, only the association itself
could lodge an action to set aside the order. Individual members had
no right to appeal. All the more the applicant, claiming not to be a
member of the prohibited association, could not lodge an action to set
aside the prohibition order. His submissions concerning the mailing
of the order or its reasoning could not be heard in the particular type
of proceedings before the Court of Appeal. Leave to appeal on points
of law (Revision) was not granted.
On 21 February 1996 the Federal Administrative Court
(Bundesverwaltungsgericht) rejected the applicant's request for leave
to appeal on points of law (Beschwerde gegen die Nichtzulassung der
Revision) on the ground that the applicant had failed to specify any
ground of appeal (Revisionszulassungsgrund) in accordance with the
relevant provisions of the Code of Administrative Court Procedure. His
argument that, contrary to the findings of the Administrative Court of
Appeal, he should be entitled to bring an action to set aside the
prohibition order of 5 May 1995 to the extent that the order was
directed against him, did not show any fundamental importance of the
case or any procedural defects. The Federal Administrative Court
considered in particular that it need not resolve the question as to
how far individual members of a prohibited association could lodge an
action to set aside the prohibition order as, according to the
applicant's own submissions, he was not a member of the association
concerned. However, third parties could not appeal against a
prohibition order. Furthermore, to the extent that the mailing of the
order to the applicant and his being mentioned in the reasoning
amounted to a violation of his rights, he could not claim that the
prohibition order be set aside. Questions related to the alleged
violations of the applicant's own rights could not, therefore, be
raised in the context of the proceedings brought by him. Pursuant to
S. 48 para. 2 of the Code of Administrative Court Procedure, the
Administrative Court of Appeal, as a court of first instance, was
solely competent to decide upon actions to set aside prohibition orders
issued under S. 3 para. 2 No. 1 of the Association Act, and the related
orders on the prohibition of further activities and the founding of
similar associations under S. 8 para. 2 of the Association Act. The
applicant's complaints were not included.
On 7 June 1996 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to admit the applicant's constitutional
complaint (Verfassungsbeschwerde) about the decision of the Federal
Administrative Court of 21 February 1996.
B. Relevant domestic law
a. The German Association Act (Vereinsgesetz)
The Association Act regulates public-law questions regarding
associations. S. 3 provides that associations which are directed
against the constitutional order may be prohibited and for the
confiscation of the association's property. According to S. 8, further
activities of the prohibited association are prohibited, likewise it
is prohibited to found associations for the purposes of replacing the
prohibited association or to use existing associations for that
purpose.
b. The Administrative Court procedure
The jurisdiction of the German administrative courts and the
procedure before them are regulated in the Code of Administrative Court
Procedure (Verwaltungsgerichtsordnung).
S. 2 provides for an administrative court system of three
instances, i.e. the Administrative Courts (Verwaltungsgerichte) and
Administrative Courts of Appeal (Oberverwaltungsgerichte) as well as
the Federal Administrative Court (Bundesverwaltungsgericht).
According to S. 40 para. 1, administrative courts are, as a rule,
competent to decide on all public-law disputes.
There are various judicial remedies, such as the general action
to set aside an administrative act (Anfechtungsklage), the action to
order an authority to take a particular decision (Verpflichtungsklage)
or general actions for performance or omission, or for a declaratory
judgment (Feststellungsklage).
An administrative court action claiming a prohibitory injunction
against a public authority regarding allegedly incorrect statements,
as well as their withdrawal or correction, may be founded on the basic
rights of the individual concerned, in particular the right to the free
development of his personality under Article 2 para. 1, in conjunction
with Article 1 of the Basic Law (Grundgesetz), protecting human
dignity.
S. 48 establishes a special competence of the Administrative
Court of Appeal to decide, as a court of first instance, upon actions
to set aside prohibition orders issued under S. 3 para. 2 (1) of the
Association Act, and the related orders on the prohibition of further
activities and the founding of similar associations under S. 8 para. 2
of the Association Act.
COMPLAINTS
The applicant complains that the prohibition order of 5 May 1995
amounts to a violation of his rights to freedom of expression and to
freedom of association. He submits that he was never a member of the
prohibited association, but, following the prohibition order in
question, he is regarded and possibly penalised as being such a member.
He invokes Article 1 of the Convention.
THE LAW
The applicant complains that the prohibition order of 5 May 1995
against the association "Direkte Aktion/Mitteldeutschland (JF)" was
mailed to him and, in its reasoning, wrongly mentioned him as a leading
member of the prohibited organisation.
However, the Commission is not required to decide whether or not
the applicant's complaint discloses any appearance of a violation of
the Convention as, under Article 26 (Art. 26) of the Convention, it may
only deal with a matter after all domestic remedies have been exhausted
according to the generally recognised rules of international law.
The Commission recalls that Article 26 (Art. 26) of the
Convention requires the exhaustion of remedies which relate to the
breaches of the Convention alleged and at the same time can provide
effective and sufficient redress (cf. No. 11660/85, Dec. 19.1.89, D.R.
59 p. 85). The basis of this rule is that, before proceedings are
brought in an international tribunal, the respondent State must have
had an opportunity to redress the alleged damage by domestic means
within the framework of its own legal system (cf. No. 5964/72, Dec.
29.9.75, D.R. 3 p. 57).
The Commission notes that on 12 October 1995 the Frankfurt/Oder
Administrative Court of Appeal declared the applicant's action to set
aside the decision of 5 May 1995 inadmissible. The Administrative
Court of Appeal found that the applicant had no capacity to take such
proceedings, and that matters related to its service or its reasoning
could not be reviewed in the type of proceedings before it. This
approach was confirmed by the Federal Administrative Court. The
applicant's constitutional complaint was to no avail.
In these circumstances, the Commission finds that the action
initiated by the applicant before the Administrative Court of Appeal
under S. 48 of the Code of Administrative Court Procedure was not an
effective remedy, for the purposes of Article 26 (Art. 26) of the
Convention, with regard to his complaints. The applicant failed to
bring an action before the competent Administrative Court claiming a
prohibitory injunction, and/or rectification with regard to the
allegedly incorrect statements by the Brandenburg Ministry of the
Interior in the impugned prohibition order.
Consequently, the applicant has not exhausted the remedies
available to him under German law, as required under Article 26
(Art. 26). Furthermore, no special circumstances existed which might
have absolved the applicant, according to the generally recognised
rules of international law, from complying with the conditions under
Article 26 (Art. 26).
It follows that the application must be rejected under Article 27
para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy