AS TO THE ADMISSIBILITY OF
Application No. 32013/96
by Heinz REISZ
against Germany
The European Commission of Human Rights sitting in private on
20 October 1997, the following members being present:
Mr S. TRECHSEL, President
Mrs G.H. THUNE
Mrs J. LIDDY
MM E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV
Mr M. de SALVIA, 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 20 March 1996 by
Heinz REISZ against Germany and registered on 25 June 1996 under file
No. 32013/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
THE FACTS
The applicant, born in 1938, is a German national and resident
in Langen. In the proceedings before the Commission, he is represented
by Mr. H. Eichelmann, a lawyer practising in Nidda.
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
I. Proceedings before the Federal Constitutional Court
On 9 December 1992 the Government of the Federal Republic of
Germany instituted proceedings before the Federal Constitutional Court
(Bundesverfassungsgericht) against the applicant for the forfeiture of
constitutional rights pursuant to Article 18 of the German Basic Law
(Grundgesetz). The Government requested that, for a period of time to
be fixed by the Constitutional Court, the forfeiture of the applicant's
right to freedom of expression, his right to freedom of the press and
freedom of reporting by means of broadcasts and films, his right to
freedom of assembly and his right to freedom of association be
pronounced. The Government further requested that the applicant be
prohibited from publicly expressing his views on political issues, from
disseminating his political views, from participating in political
meetings and from organising such meetings as well as from being a
member or supporter of a political association. Finally, they
requested that he should not be entitled to stand for elections during
the period of forfeiture.
In the reasoning of their request, the Government submitted that
the applicant had constantly abused the above constitutional rights for
the purpose of fighting against the free democratic constitutional
system ("freiheitlich demokratische Grundordnung"). His activities
aimed at abolishing this system by aggressive and militant means and,
given his conduct in the past, it was to be expected that he would
continue fighting against the free democratic constitutional system in
that way. The Government then set out in detail the applicant's
activities in several extreme right-wing associations which partly
pursued nazi ideas. In the past three years, ten preliminary
investigations had been conducted against the applicant on the
suspicion of having committed offences motivated by his political
views. In May 1990 he had been convicted of having made use of signs
of anticonstitutional organisations and had been fined DEM 800. Three
further criminal proceedings concerning charges of having made use of
signs of anticonstitutional organisations and of incitement to hatred,
respectively, were still pending.
The Government, referring to the case-law of the Federal
Constitutional Court, further stated that the free democratic
constitutional system comprised respect for the constitutional rights,
the sovereignty of the people, the separation of powers, the
responsibility of the Government, the rule of law and independence of
the judiciary, the multi-party system and equality of opportunities for
all political parties. They considered that the applicant's aggressive
antisemitism, his extreme xenophobia and his constant fight against the
constitutional system seriously imperilled the system. According to
the Government, the applicant obviously availed himself of his
constitutional rights with a view to destroying the free democratic
constitutional order. The applicant's agitation was particularly
dangerous due to his repeated appearances on television. Moreover, the
aim of preventing the applicant from pursuing his aggressive abuse of
his constitutional rights could not be achieved by more lenient
measures. Thus his criminal prosecution, the prohibition of
anticonstitutional associations with which he had contacts and the
mentioning of his name in the 1991 report of the Federal Agency for the
Protection of the Constitution (Bundesamt für Verfassungsschutz) had
had no deterrent effect.
Article 18 of the German Basic Law provides that whoever abuses
freedom of expression or of opinion, in particular the freedom of the
press, freedom of teaching, freedom of assembly, freedom of
association, the privacy of correspondence and telecommunications, the
right to property or the right to asylum in order to fight against the
free democratic constitutional system, shall forfeit these basic
rights. Such forfeiture and the extent thereof shall be pronounced by
the Federal Constitutional Court.
According to S. 36 of the Federal Constitutional Court Act, a
request pursuant to Article 18 of the Basic Law may be lodged by the
Federal Diet, by the Federal Government or by one of the Länder
Governments. In preliminary proceedings, the Federal Constitutional
Court hears the defendant on the request and then decides whether to
reject the request as inadmissible or manifestly ill-founded or whether
to conduct a hearing (S. 37). S. 38 provides that the Constitutional
Court may order a search or confiscation pursuant to the provisions of
the Code of Criminal Procedure (Strafprozeßordnung). If the request
is well-founded, the Constitutional Court decides upon the extent to
which the defendant has forfeited his or her constitutional rights; the
forfeiture may be limited in time (S. 39 para. 1). The Constitutional
Court may also deprive the defendant of his or her right to vote or his
or her right to stand for elections or be eligible for public office.
On 15 December 1992 the Federal Constitutional Court communicated
the request to the applicant and requested him to submit his comments,
if any, by 15 February 1993. The applicant submitted his observations
on 30 December 1992.
In his letter of 12 February 1996, the applicant complained to
the Federal Constitutional Court about the length of the proceedings.
On 18 July 1996 the Second Chamber (Senat) of the Federal
Constitutional Court joined the requests lodged by the Government
against the applicant and against a further person initialled D. The
requests were rejected on the ground that they were not sufficiently
reasoned. Pursuant to the relevant provisions of the Constitutional
Court Act (Bundesverfassungsgerichtsgesetz), the Constitutional Court
refrained from giving reasons for its decision. The Government was
ordered to bear the defendants' legal expenses. The decision was
served upon the applicant's counsel on 30 July 1996.
II. Proceedings before the Hessen Administrative Court of Appeal
On 8 December 1992 the Federal Minister of the Interior
(Bundesminister des Innern), in pursuance of S. 3 of the Association
Act (Vereinsgesetz), prohibited the political association "Deutsche
Alternative" on the ground that it pursued anticonstitutional aims.
On 9 December 1992 the Darmstadt Administrative Court
(Verwaltungsgericht), upon the request of the Darmstadt Regional
Government (Regierungspräsidium) of the same day, ordered, inter alia,
the search of the applicant's premises with a view to finding evidence
to prove that the said association pursued anticonstitutional aims.
The search was carried out in December 1992 and various objects, in
particular documents, were seized, which were partly returned later.
On 4 March 1996 the Hessen Administrative Court of Appeal
(Verwaltungsgerichtshof) dismissed the applicant's appeal of
24 December 1992. The Court found that the search warrant had been
issued in accordance with S. 4 paras. 2 and 4 of the Association Act,
which allows for various investigatory measures in the context of
proceedings relating to the prohibition of an association. The
applicant's submissions did not justify the conclusion that objects
which had been seized should be returned to him at this stage. The
decision was served on 9 March 1996.
COMPLAINTS
1. The applicant complains under Article 6 para. 1 of the Convention
about the length of the proceedings before the Federal Constitutional
Court concerning the Government's request under Article 18 of the Basic
Law.
2. The applicant further complains under Article 6 para. 1 of the
Convention about the length of the proceedings before the Hessen
Administrative Court of Appeal concerning the search warrants.
THE LAW
1. The applicant complains about the length of the proceedings
before the Federal Constitutional Court concerning the Federal
Government's request under Article 18 of the Basic Law. He invokes
Article 6 para. 1 (Art. 6-1) of the Convention.
This provision, as far as relevant, provides as follows:
"In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a ...
hearing within a reasonable time by [a] ... tribunal ... "
The Convention organs have already had to consider on a number
of occasions the question of the applicability of Article 6 para. 1
(Art. 6-1) to the proceedings before a constitutional court.
The Commission recalls that proceedings come within the scope of
Article 6 para. 1 (Art. 6-1), even if they are conducted before a
constitutional court, where their outcome is decisive for "civil rights
and obligations" (cf. Eur. Court HR, Süßmann v. Germany judgment of
16 September 1996, Reports 1996-IV, No. 15, p. 1117, para. 41; Pammel
and Probstmeier v. Germany judgments of 1 July 1997, para. 53 and
para. 48, respectively Reports 1997-IV, No. 4; see also No. 24359/94,
Dec. 30.6.95, D.R. 82-A, p. 56).
The Commission considers that the rights at issue before the
Federal Constitutional Court were the applicant's rights to freedom of
expression, to freedom of the press and freedom of reporting by means
of broadcasts and films, to freedom of assembly and to freedom of
association inasmuch as his political views and activities were
concerned as well as his right to stand for political elections. The
Commission finds that the exercise of these rights in pursuance of
political aims is closely bound up with the free democratic
constitutional system of the Federal Republic of Germany and that the
exercise of these rights for political purposes cannot be considered
as a civil right for the purposes of Article 6 para. 1 (Art. 6-1) (cf.,
mutatis mutandis, No. 24359/94, loc. cit.).
Consequently, the Federal Constitutional Court was not called
upon to decide a dispute as to one of the applicant's civil rights and
obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention when it examined the Government's request under Article 18
of the Basic Law.
Given the particular nature of the request under Article 18 of
the Basic Law and its legal implications, the further question arises
whether the constitutional proceedings in question involved a
determination of a "criminal charge" within the meaning of Article 6
(Art. 6).
The Commission recalls that the notion of "criminal charge" in
Article 6 (Art. 6) has an autonomous meaning. In order to determine
whether the charge of having abused constitutional rights in order to
fight against the free democratic constitutional order is to be
regarded as "criminal" within the meaning of Article 6 (Art. 6), the
Commission will apply the three alternative criteria laid down in the
case-law of the Convention organs, namely the legal classification of
the offence under domestic law, the nature of the offence and the
nature and degree of severity of the penalty (cf. Eur. Court HR, Engel
and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22,
pp. 34-35, para. 82; Demicoli v. Malta judgment of 27 August 1991,
Series A no. 216, pp. 15-17, paras. 31-34; Putz v. Austria judgment of
22 February 1996, Reports 1996-I, No. 4, pp. 324-326, paras. 31-37; see
also, mutatis mutandis, Jamil v. France judgment of 8 June 1995, Series
A no. 317-B, pp. 27-28, paras. 31-32).
As regards the first criterion, the definition of the acts under
domestic law, the Commission notes that the legal basis of the
proceedings brought against the applicant was Article 18 of the Basic
Law and that the ensuing proceedings before the Federal Constitutional
Court were governed by the relevant provisions of the Federal
Constitutional Court Act. These provisions formed part of German
constitutional law.
The second and more important factor is the "very nature of the
offence" (Eur. Court HR, Demicoli judgment, op. cit., p. 16, para. 33).
The Commission notes that Article 18 of the Basic Law concerns
the abuse of constitutional rights in order to fight against the free
democratic constitutional order. In order to defend against attempts
to damage or overthrow the free democratic constitutional system, this
provision enables two of the highest federal organs and the Länder
Governments to turn to the Federal Constitutional Court and apply for
the forfeiture of certain of an individual's constitutional rights.
In this context the Commission observes that, when the Federal
Republic was founded after the nightmare of nazism, that country's
experience under the Weimar Republic led to its Constitution being
based on the principle of a "democracy capable of defending itself"
("wehrhafte Demokratie"; cf. Eur. Court HR, Vogt v. Germany judgment
of 26 September 1995, Series A no. 323, p. 25, para. 51). The defence
of an effective political democracy is also a concept underlying the
system of the Convention (cf. Eur. Court HR, Klass and Others
v. Germany judgment of 6 September 1978, Series A no. 28, p. 28,
para. 59; Brogan and Others v. the United Kingdom judgment of
28 November 1988, Series A no. 145-B, p. 27, para. 48). Moreover,
similarly to Article 18 of the Basic Law, it is the purpose of
Article 17 (Art. 17) of the Convention, insofar as it refers to groups
or to individuals, to prevent them from deriving from the Convention
a right to engage in any activity or perform any act aimed at
destroying any of the rights and freedoms set forth in the Convention
(cf. Eur. Court HR, Lawless v. Ireland judgment of 1 July 1961, Series
A no. 3, p. 45, para. 7; No. 250/57, Dec. 20.7.57, Yearbook 1, p. 222).
In the present case, certain aspects of the activities with which
the applicant was charged by the Federal Government were criminal
offences, namely the use of signs of anticonstitutional organisations
and incitement to hatred, and had given rise to criminal prosecution.
The Government's request under Article 18 of the Basic Law however
concerned the applicant's political activities as a whole and the
exercise of his constitutional rights. The Commission finds that the
proceedings concerning this kind of proscribed conduct fall outside the
ambit of Article 6 (Art. 6).
Turning to the third criterion, the Commission notes that, when
a request under Article 18 of the Basic Law is well-founded, the legal
effect of the Constitutional Court's decision only relates to the
exercise of specific constitutional rights in pursuit of
anticonstitutional activities and the right to stand for elections.
While some forms of deprivation of fundamental rights may also be
envisaged under criminal law, a sanction of this kind is secondary and
and can only be imposed in conjunction with a primary sentence. The
forfeiture of specific constitutional rights which could be pronounced
by the Federal Constitutional Court cannot be regarded as a primary
"penalty" within the meaning of Article 6 (Art. 6) of the Convention
(cf., mutatis mutandis, No. 24359/94, Dec. 30.6.95, D.R. 82, p. 56;
No. 32258/96, Dec. 13.1.97, D.R. 88, p. 176).
Consequently, Article 6 (Art. 6) of the Convention does not apply
to the constitutional proceedings brought against the applicant under
Article 18 of the Basic Law.
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention, and must be
rejected pursuant to Article 27 para. 2 (Art. 27-2).
2. The applicant also complains under Article 6 para. 1 (Art. 6-1)
of the Convention about the length of the proceedings before the Hessen
Administrative Court of Appeal.
The Commission notes that the proceedings before the Hessen
Administrative Court of Appeal concerned the question of the lawfulness
of a search of the applicant's premises ordered by the Darmstadt
Administrative Court in the context of investigations under the
Association Act against a political association, and the seizure of
objects on the occasion of the search.
As regards the applicability of Article 6 (Art. 6), the
Commission recalls that measures consequential upon a criminal offence
committed by another party cannot as such lead to the conclusion that
a "criminal charge" for the purposes of Article 6 (Art. 6) could be
considered as having been brought against the persons affected by these
measures (cf. Eur. Court HR, AGOSI v. the United Kingdom judgment of
24 October 1986, Series A no. 108, p. 22, paras. 65-66; Air Canada v.
the United Kingdom judgment of 5 May 1995, Series A no. 316-A, pp. 20-
21, paras. 52-55). The Commission finds that these considerations
apply likewise to the investigation measures which were implemented
against the applicant in the context of proceedings against a political
association. The applicant himself was not a party to these
proceedings and no criminal proceedings were brought against him in
this context. Accordingly, the administrative court proceedings did
not involve "the determination of [a] criminal charge".
On the matter of the seizure of objects, the Commission recalls
that Article 6 (Art. 6) applies to any action whose subject matter is
"pecuniary" in nature and which is founded on an alleged infringement
of rights that are likewise of a pecuniary character (cf. Eur. Court
HR, Raimondo v. Italy judgment of 22 February 1994, Series A no. 281-A,
p. 20, para. 43; Air Canada judgment, op. cit., p. 20, para. 56).
Hoever, even assuming that this aspect of the proceedings before
the Hessen Administrative Court of Appeal involved a determination of
the applicant's "civil rights and obligations", the Commission is not
required to decide whether his submissions disclose an appearance of
a violation of his right to a hearing within a "reasonable time".
The Commission finds that the applicant has failed to show that
he lodged a constitutional complaint with the Federal Constitutional
Court concerning the allegedly unreasonable length of these
proceedings, and has not, therefore, exhausted the remedies available
to him under German law (cf. Eur. Court HR, König v. Germany judgment
of 28 June 1978, Series A no. 27, p. 22, para. 61, and p. 23, para. 64;
No. 8499/79, Dec. 7.1080, D.R. 21, p. 176).
This part of the application is, therefore, inadmissible under
Article 27 para. 3, in conjunction with Article 26 (Art. 27-3+26), of
the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy