AS TO THE ADMISSIBILITY OF
Application No. 29526/95
by Siegfried Otto STRESEMANN
against Germany
The European Commission of Human Rights sitting in private on
24 June 1996, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
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
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 24 October 1995
by Siegfried Otto STRESEMANN against Germany and registered on
12 December 1995 under file No. 29526/95;
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 1941, is a German national and resident
in Castrop-Rauxel. He is a technician by profession.
A. Particular circumstances of the case
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
On 15 December 1994 the Koblenz Court of Appeal
(Oberlandesgericht) sitting as court of first instance convicted the
applicant of espionage (geheimdienstliche Agententätigkeit) on behalf
of the former German Democratic Republic together with corruption
(Bestechlichkeit), pursuant to the relevant provisions of the German
Penal Code (Strafgesetzbuch). The applicant was sentenced to two years
and six months' imprisonment. The applicant was also, for a period of
five years, deprived of the right to hold a public office, to vote and
to be elected, and the forfeiture of a sum of money amounting to DM
30,000 was ordered. The Court found that the applicant, as employee of
the Federal Office for Military Material (Bundesamt für Wehrtechnik und
Beschaffung), had forwarded secret information on the organisation of
the Office, and documents relating to military material to the secret
service of the former German Democratic Republic. The decision was
served upon the applicant on 5 January 1995.
B. Domestic law and practice
S. 333 of the Code of Criminal Procedure (Strafprozeßordnung)
provides for a right to appeal on points of law (Revision) against,
inter alia, a judgment rendered by a Court of Appeal, sitting as court
of first instance.
According to Article 93 para. 1 (4a) of the Basic Law (Grund-
gesetz), the Federal Constitutional Court (Bundesverfassungsgericht)
shall decide on complaints of unconstitutionality, which may be entered
by any person who claims that one of his basic rights or one of his
rights under paragraph 4 of Article 20 or under Articles 33, 101, 103,
or 104 has been violated by a public authority.
Article 100 para. 1 of the Basic Law provides inter alia that,
if a court considers that a statute on whose validity its decision
depends is unconstitutional, the proceedings shall be stayed, and a
decision shall be obtained from the Federal Constitutional Court if the
Basic Law is held to be violated. According to paragraph 2 of this
provision, the court shall obtain a decision from the Federal
Constitutional Court if, in the course of litigation, doubt exists as
to whether a rule of public international law is an integral part of
federal law and whether such a rule directly creates rights and duties
for the individual.
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 punished. Furthermore, numerous persons convicted
of such offences lodged constitutional complaints (Verfassungs-
beschwerden) 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.
On 15 May 1995 the Federal Constitutional Court, in a leading
decision concerning the request submitted by the Berlin Court of Appeal
and three constitutional complaints, found that there was no rule of
public international law according to which punishment for espionage
and similar offences was excluded if the offences in question had been
committed on instruction and from the territory of a State which had
subsequently acceded to the State spied on. However, the
Constitutional Court, having regard to the principle of
proportionality, found in particular that there was a technical bar to
prosecution of citizens of the former German Democratic Republic who
had committed espionage solely within the territory of the former
German Democratic Republic and that considerations of proportionality
had also to be taken into account when prosecuting and punishing other
citizens of the former German Democratic Republic for espionage.
COMPLAINTS
The applicant complains under Articles 5 and 14 of the Convention
about his conviction and his subsequent detention. He considers that
following the German unification in 1990 there was no legal basis for
punishment in respect of espionage on behalf of the former German
Democratic Republic. He further submits that persons who had been
convicted, by the courts of the former German Democratic Republic, of
espionage on behalf of the Federal Republic of Germany had meanwhile
been rehabilitated. Moreover, he maintains that the punishment of
citizens of the former German Democratic Republic was less severe.
As regards Article 26 of the Convention, the applicant submits
that he did not lodge a constitutional complaint with the Federal
Constitutional Court on the ground that proceedings raising the same
issues were already pending before that Court.
THE LAW
The applicant complains about his conviction by the Koblenz Court
of Appeal of 15 December 1994, and of his subsequent detention.
According to Article 26 (Art. 26) of the Convention, the
Commission may only deal with the matter after all domestic remedies
have been exhausted, according to the generally recognised rules of
international law, and within a period of six months from the date on
which the final decision was taken.
In the present case, the applicant did not appeal on points of
law to the Federal Court of Justice (Bundesgerichtshof) and he did not
lodge a constitutional complaint with the Federal Constitutional Court.
The Commission recalls that under international law, to which
Article 26 (Art. 26) makes express reference, the rule of exhaustion
of domestic remedies demands the use of such remedies as are available
and sufficient and relate to the breaches alleged (see, Eur. Court
H.R., Ciulla judgment of 22 February 1989, Series A no. 148, p. 15,
para. 31; Brozicek judgment of 19 December 1989, Series A no. 167, pp.
16-17, para. 34).
The Commission observes that both an appeal on points of law to
the Federal Court of Justice and a constitutional complaint to the
Federal Constitutional Court, based on the alleged violation of the
right to liberty and the right to equality, as guaranteed by the Basic
Law, would have been effective remedies for the purposes of Article 26
(Art. 26) (see, mutatis mutandis, No. 6271/73, Dec. 13.5.76, D.R. 6 p.
62; No. 6830/74, Dec. 16.5.77, D.R. 9 p. 23; No. 8499/79, Dec. 7.10.80,
D.R. 21 p. 176; No. 11457/86, Dec. 4.5.87, D.R. 52 p. 236).
Consequently, the applicant has not exhausted the remedies available
to him under German law.
The Commission has had regard to the applicant's submission that
he was not required to exhaust these remedies because of other
proceedings pending before the Federal Constitutional Court which
concerned similar matters.
The Commission observes that Article 26 (Art. 26) must be applied
"with some degree of flexibility and without excessive formalism" (cf.
Eur. Court H.R., Guzzardi judgment of 6 November 1980, Series A no. 39,
p. 26, para. 72; Cardot judgment of 19 March 1991, Series A no. 200,
p. 18, para. 34; Castells judgment of 23 April 1992, Series A no. 236,
p. 19, para. 27).
However, the applicant did not argue that there was any case-law
in existence at the relevant time to show that the above remedies
lacked any prospect of success and were, therefore, pointless (cf.,
mutatis mutandis, Eur. Court H.R., B. v. France judgment of 25 March
1992, Series A no. 232-C, pp. 46-47, para. 42; No. 6271/73, loc. cit.;
No. 9586/82, Dec. 14.5.87, D.R. 52 p. 38).
Even assuming that the applicant was excused from exhausting the
remedies available to him under German law, the Commission finds that
the last decision regarding his case was given by the Koblenz Court of
Appeal on 15 December 1994 and served on 5 January 1995, whereas his
application was only submitted on 24 October 1995 which is more than
six months later.
The Commission considers that the applicant, who did not exhaust
all remedies available to him under German law, and in particular a
constitutional complaint to the Federal Constitutional Court, cannot
be excused for delaying his application for more than six months after
the last decision in his case, pending the outcome of such proceedings
in similar cases. Consequently, 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.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy