AS TO THE ADMISSIBILITY OF
Application No. 11728/85
by R.H.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 2 March 1987, the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
S. TRECHSEL
B. KIERNAN
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
F. MARTINEZ
Mr. H. C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 15 July 1985 by
R.H. against the Federal Republic of Germany and registered on
19 August 1985 under file No. 11728/85;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a German citizen born in 1922, is a businessman
resident in Hamburg.
The applicant introduced a previous application before the
Commission in 1974 in which he complained of criminal proceedings
instituted against him for organising an unlicensed lottery. On
13 March 1975 the Commission declared this application (No. 6704/74)
inadmissible.
In 1978 the applicant introduced another application (No.
8426/78) before the Commission. He complained, inter alia, that his
proposed candidature for the election of the Hamburg Land Parliament
(Bürgerschaft) on 4 June 1978 was not admitted and that his challenge
of the election was rejected. This application was declared
inadmissible by the Commission on 9 July 1980.
In 1982 the applicant again intended to stand for the
elections of the Hamburg Land Parliament which were to take place on
6 June and 19 December 1982. In order to obtain the five hundred
signatures of voters required by the relevant legislation in Hamburg
in support of his candidature, the applicant requested the Hamburg
authorities to circulate or display in the Hamburg prisons
publications and the official forms which voters have to sign in
support of a candidature in elections. Apparently this request had
been granted for the elections on 6 June 1982. However, for the
elections taking place on 19 December 1982, the applicant's request
was rejected.
On 8 November 1982 and 15 January 1983 the applicant
challenged the validity of the elections of 19 December 1982 before
the Hamburg Land Parliament on the ground, inter alia, that he was
prevented from collecting, in the Hamburg prisons, the five hundred
signatures in support of his candidature.
On 4 May 1983 the Hamburg Land Parliament rejected the
applicant's challenge. His appeal was dismissed on 30 November 1983
by the Hamburg Constitutional Court (Hamburgisches
Verfassungsgericht).
The applicant's constitutional complaint was dismissed by the
Federal Constitutional Court (Bundesverfassungsgericht) on 15 January
1985, partly as being inadmissible and partly as lacking prospects of
success.
Apparently in 1986 the applicant again requested to have
publications and the official forms for signatures in support of his
candidature for the elections of the Hamburg Land Parliament on
9 November 1986 circulated in the Hamburg prisons. This request was
rejected by the Hamburg authorities. However, upon the applicant's
application for a provisional ruling, on 25 September 1986 the Hamburg
Administrative Court of Appeal (Oberverwaltungsgericht) ordered the
Hamburg authorities to display in each of the Hamburg prisons at a
place accessible to detainees up to two hundred copies of the official
form provided for signatures in support of the applicant's candidature
as well as up to twenty copies of a publication by the applicant.
COMPLAINT
The applicant complains that he was prevented from collecting,
in the Hamburg prisons, the necessary number of signatures required in
support of a candidature and that consequently he could not stand as a
candidate in the elections on 19 December 1982. He invokes Article 3
of Protocol No. 1 to the Convention.
THE LAW
The applicant complains that he was prevented from collecting
the five hundred signatures required in support of his candidature as
the authorities refused to circulate or display his publications and
the official forms in the Hamburg prisons.
It is true that Article 3 of Protocol No. 1 (P1-3) secures the
right to free elections at reasonable intervals by secret ballot, under
conditions which will ensure the free expression of the opinion of the people
in the choice of the legislature. This provision guarantees in principle the
right to vote and the right to stand as a candidate at the election of the
legislative body (see Nos. 6745/74 and 6746/74, Dec. 30.5.75, D.R. 2 p. 110,
116 and Nos. 8348/78 and 8406/78, Dec. 11.10.79, D.R. 18, 187, 196).
In the present case, it may appear doubtful whether the
applicant exhausted the remedies available to him under German law in
accordance with Article 26 (Art. 26) of the Convention, as he did not
apply to the administrative courts for an injunction before or after
having been informed of the decision of the authorities not to grant
his request for circulation or display of publications and forms, and
before the elections actually took place on 19 December 1982.
In this respect, the Commission notes in particular that the
applicant, when his corresponding request concerning the elections on
9 November 1986 was rejected, in fact applied to the Administrative
Court and that he eventually obtained an order in his favour before
the Administrative Court of Appeal. The applicant has not shown
that it was impossible or inappropriate for him to seek a similar
order from the Admnistrative Courts before the election of 19 December
1982.
However, the Commission does not find it necessary to make a
finding on this issue as the application is in any event manifestly
ill-founded.
The Commission recalls that the right guaranteed, in
principle, by Article 3 of Protocol No. 1 (P1-3) to vote and to stand for
election to the legislature is neither absolute nor without
limitations. As the Commission has already held, States may impose
certain restrictions on this right, provided that they are not
arbitrary and do not interfere with the free expression of the
people's opinion (Nos. 6745/74 and 6746/74, Dec. 30.5.75, D.R. 2
pp. 110, 116).
As regards the refusal by the Hamburg authorities to grant the
applicant's request, the Commission concedes that although under
German law prisoners do not generally or automatically lose their
right to vote (see S. 45 para. 5 of the Criminal Code -
Strafgesetzbuch) the circulation of publications by political groups
or candidates or their display may indeed adversely affect the order
in penal institutions. Furthermore, the Commission notes that the
applicant does not allege that other candidates or political parties
were allowed to circulate publications in the Hamburg prisons or have
them circulated or displayed there or to collect signatures in the
prisons.
Under these circumstances, the Commission cannot find that the
restrictions imposed on the applicant's candidature were unreasonable
or arbitrary or that they were likely to interfere with the free
expression of the opinion of the people in the choice of the
legislature.
It follows that the application is in any event manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)