THE FACTS

The facts of the case as submitted by the applicant may be summarised

as follows:

1. The applicant is a German citizen, born in 1925 and living in

Wetzen, near Lüneburg. He is represented by Dr. X., a barrister

practising in Hamburg.

2. The present application concerns:

- two decisions taken in the applicant's case by the Federal Inspection

Office (Bundesprüfstelle) in Bonn under the Act Governing the

Circulation of Publications Liable to Corrupt the Young (Gesetz über

die Verbreitung jugendgefährdender Schriften) of 1953, and

- subsequent proceedings before the Administrative courts relating to

these decisions.

3. Article 1 of the above Act provides that publications liable to

corrupt the young, including especially those of an indecent nature and

such as to glorify war or incite to crime or race hatred, shall be

entered in a list and their entry be notified to the public. The

decision regarding the entry in the list rests with the Federal

Inspection Office (Article 11). The members of this Office are

appointed by the Federal Minister for Family and Youth Affairs and by

the Governments of the Länder; they are not bound by instructions

(Articles 9 and 10).

As soon as the entry of a publication in the list has been notified,

it may not be offered for sale, or made accessible, to any person under

eighteen years of age (Article 3 in conjunction with Article 1 (4)),

nor may it be sold, distributed or let by dealers outside business

premises, door to door salesmen, at kiosks or other business premises

which the customer is not in the habit of entering, through mail order

firms or lending libraries (Article 4).

4. From the documents submitted by the applicant, it appears that he

is the author of two novels entitled "But behind their doors they are

naked" and "The sex plays of Mr. B" which, by decision of the Federal

Inspection Office of .. October 1968 and .. June 1969, respectively,

were entered in the list provided for by Article 1 of the above Act.

5. A complaint (Klage) against the decision of the Federal Inspection

Office of .. October 1968 was filed by the applicant's publisher with

the Administrative Court (Verwaltungsgericht) of Cologne on .. November

1968 and on .. August 1969 the applicant was, at his request,

authorised by the Court to intervene (beigeladen) in these proceedings.

On .. July 1969, a complaint against the decision of the Federal

Inspection Office of .. June 1969 was filed by the applicant with the

Administrative Court. By letter of 25 February 1971, from the

Commission's Secretary, the applicant's lawyer was requested to inform

the Commission as to the progress of the proceedings before the

Administrative courts in the applicant's case. No reply to this letter

has been received in the Secretariat.

6. The applicant also requested a suspension of the execution of the

decisions of .. October 1968 and .. June 1969 pending the outcome of

the proceedings before the Administrative Court on .. and .. July 1969,

respectively, and, on appeal (Beschwerde), by the Administrative Court

of Appeal (Oberverwaltungsgericht) of Münster on .. September 1969.

7. On .. October 1969 the applicant addressed a constitutional appeal

(Verfassungsbeschwerde) to the Federal Constitutional Court

(Bundesverfassungsgericht) complaining of the above decision of the

Administrative Court of Appeal. He invoked Articles 1 (3), 2 to 5, 12,

14, 19, 92, 101 and 103 of the Basic Law (Grundgesetz) of the Federal

Republic of Germany. This appeal was dismissed by a committee of three

judges of the Court on .. October 1969. The Court stated that the

appeal was inadmissible for non-exhaustion of other remedies, insofar

as it attacked the decisions of the Federal Inspection Office, and

manifestly ill-founded, insofar as the applicant sought a suspension

of the execution of these decisions.

8. The applicant complains that the Federal Inspection Office, though

not a Court but a body of experts, is empowered to take decisions which

are executed at once and which remain in force pending their review by

the Administrative Courts. He submits that this constitutes a violation

of Article 6 (1) and (2) of the Convention. He also invokes Articles

9 and 10 of the Convention and Article 1 of Protocol No. 1.

THE LAW

1. The applicant has complained of the decisions of the Federal

Inspection Office of .. October 1968 and .. June 1969. However, under

Article 26 (Art. 26) of the Convention, the Commission may only deal

with a matter after all domestic remedies have been exhausted according

to the generally recognised rules of international law.

In the present case the applicant, although invited to do so, failed

to show that he has exhausted the remedies available to him under

German law before the Administrative Courts. Moreover, an examination

of the case as it has been submitted does not disclose the existence

of any special circumstances which might have absolved the applicant,

according to the generally recognised rules of international law, from

exhausting the domestic remedies at his disposal.

It follows that the applicant has not complied with the condition as

to the exhaustion of domestic remedies and his application must in this

respect be rejected under Article 27, paragraph (3) (Art. 27-3), of the

Convention.

2. The applicant has further complained of the refusal by the

Administrative Courts of his petitions for a suspension of the

execution of the above decisions of the Federal Inspection Office.

However, under Article 25 (1) (Art. 25-1) of the Convention, it is only

the alleged violation of one of the rights and freedoms set forth in

the Convention that can be the subject of an application presented by

a person, non-governmental organisation or group of individuals. In

particular, no right to have the execution of an administrative

decision suspended, while an appeal from this decision is pending

before an Administrative Court, is as such included among the rights

and freedoms guaranteed by the Convention.

It follows that this part of the application is incompatible ratione

materiae with the provisions of the Convention within the meaning of

Article 27, paragraph (2) (Art. 27-2).

For these reasons, the Commission DECLARES THIS APPLICATION

INADMISSIBLE.