Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 38570/97

by Armin HINDRICHS

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 4 March 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

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 10 July 1997 by

Armin HINDRICHS against Germany and registered on 13 November 1997

under file No. 38570/97;

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 1932, is a German national and resident

in Rheinbreitbach near Bonn. When lodging his application, he was

detained in a prison in Wittlich. In the proceedings before the

Commission, he is represented by Mr F. Wolff, a lawyer practising in

Berlin.

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

summarised as follows.

In 1991 criminal proceedings were initiated against the applicant

on suspicion of having committed espionage (geheimdienstliche

Agententätigkeit).

The trial against the applicant was held before the Düsseldorf

Court of Appeal (Oberlandesgericht), sitting as a court of first

instance, on several days in October 1994. In these proceedings, the

applicant was assisted by defence counsel.

On 27 October 1994 the Düsseldorf Court of Appeal convicted the

applicant of espionage on behalf of the former German Democratic

Republic, pursuant to S. 99 para. 1 (1) of the German Penal Code

(Strafgesetzbuch).

According to this provision, anybody who commits, on behalf of

a secret service of a foreign power, espionage against the Federal

Republic of Germany, aiming at communicating or forwarding facts,

objects or findings, shall be liable to imprisonment for a period not

exceeding five years or a fine.

The applicant was sentenced to four years' imprisonment. The

forfeiture of a sum of money amounting to DEM 100,000 was ordered. The

applicant was also, for a period of three years, deprived of the rights

to hold a public office, to vote and to be elected.

The Court found that in 1959 the applicant, who had then been

living in the German Democratic Republic, had agreed to work for the

Ministry for State Security (Ministerium für Staatssicherheit), the

secret service of the former German Democratic Republic. He had moved

to West Berlin in 1960 upon the order of the said Ministry. Until 1989

he had informed the Ministry about the structures, tendencies and

activities first of the Christian Democrat Students' Association

(RCDS), later of the Social Democrats. He had also provided information

about persons trying to leave the German Democratic Republic and people

organising these escapes (Fluchthelfer). The Court of Appeal found that

the applicant had thereby committed espionage. In fixing his sentence,

the Court considered that his main motive for cooperation with the

Ministry had been to prove his loyalty to the German Democratic

Republic. The Court regarded as particularly aggravating circumstances

the lengthy period of his involvement in espionage, the intensity of

his collaboration with the Ministry for State Security and the fact

that until 1964 he had also revealed the names of persons organising

escapes from the German Democratic Republic, thus accepting their

possible arrest.

On 3 January 1996 the Federal Court of Justice (Bundesgerichtshof)

upon the applicant's appeal on points of law (Revision) quashed the

judgment of 27 October 1994 as far as the fixing of the sentence was

concerned and sent the case back to a different Senate of the

Düsseldorf Court of Appeal. The Court, in its reasoning, referred to

the decision of the Federal Constitutional Court (Bundesverfassungsge-

richt) in leading cases dated 15 May 1995. It held that the trial court

had omitted to make sufficient findings as to whether the applicant,

when committing espionage, was still to be considered as a citizen of

the German Democratic Republic.

The Federal Constitutional Court in the above-mentioned decision

held that espionage against the Federal Republic of Germany on behalf

of the German Democratic Republic remained a punishable act even after

the unification of Germany. This resulted from the particularities of

national security rules (Staatsschutzrecht) and did not breach any

rules of public international law. The Court observed that, under

public international law, a State was entitled to enact legislation

relating to criminal offences committed within its territory as well

as to offences committed by foreigners abroad to the extent that its

existence or important interests were at risk. Furthermore, there were

no rules on the punishment of espionage by a State following the

accession of another State. However, the principle of proportionality

required a court to take into account at different stages of the

proceedings whether a person had been a citizen of the former German

Democratic Republic and whether the espionage had been committed within

the territory of the latter State only or also within the territory of

the Federal Republic of Germany itself. With regard to citizens of the

former German Democratic Republic who had committed espionage within

the territory of the Federal Republic of Germany or one of its allies,

or in a third State where they had risked extradition or punishment,

there was no general bar to prosecution. However, those persons had,

as a consequence of the fall of the German Democratic Republic, lost

the protection of that State, if only the expectation that they would

be exchanged in case of their arrest. Moreover, even if they knew

about the legal order of the Federal Republic of Germany, their sense

of wrongdoing was attuned to the legal order of the former German

Democratic Republic. Above all, they were prosecuted by their own State

in respect of espionage activities committed at a time when they

regarded that State as a foreign State. In such cases all relevant

circumstances had to be weighed in the light of the above

considerations with a view to determining whether or not a prosecution

should be continued, and in fixing the sentence.

On 24 May 1996 in the resumed proceedings the Düsseldorf Court

of Appeal sentenced the applicant to three years' imprisonment; the

forfeiture of money and deprivation of certain political rights were

confirmed. When fixing his sentence, the Court took into account that

the applicant had continued to be, and regarded himself as, a citizen

of the German Democratic Republic.

On 23 October 1996 the Federal Court of Justice dismissed the

applicant's appeal on points of law.

On 20 December 1996 the Federal Constitutional Court (Bundesver-

fassungsgericht) refused to entertain his constitutional complaint

(Verfassungsbeschwerde).

COMPLAINTS

1. The applicant complains under Article 5 of the Convention that

his detention is unlawful on the ground that it violates general rules

of public international law which, by means of Article 25 of the Basic

Law, form part of the law of the Federal Republic of Germany. According

to the applicant, Article 31 of the 1907 Hague Regulation Respecting

the Laws and Customs of War on Land, which prohibits the prosecution

for espionage of spies of the former enemy captured as prisoners of

war, has to be applied mutatis mutandis to spies of the former German

Democratic Republic after the unification of Germany and the end of the

"Cold War".

2. The applicant further complains that his conviction amounts to

a violation of his right to a fair and public hearing by an independent

and impartial tribunal within the meaning of Article 6 of the

Convention. He submits that all judges dealing with his case were

citizens of the Federal Republic of Germany at the time when the

espionage was committed. They had taken an oath as to their committment

to the free democratic basic order (freiheitlich-demokratische

Grundordnung) of the Federal Republic of Germany.

3. The applicant also complains under Article 14 of the Convention

that his conviction of espionage amounted to discrimination on

political grounds. While espionage on behalf of the former German

Democratic Republic was prosecuted as a criminal offence, the penal

provisions of the former German Democratic Republic regarding espionage

committed by agents of the Federal Intelligence Service had been

repealed in the context of the Unification treaty. Therefore, citizens

of the former German Democratic Republic having committed espionage on

behalf of the Federal Republic of Germany or its allies were not

prosecuted or, to the extent that they had been convicted by the courts

of the former German Democratic Republic, they had been rehabilitated

or could be rehabilitated.

THE LAW

1. The applicant complains under Article 5 para. 1 (Art. 5-1) of the

Convention that his conviction of espionage, and consequently his

subsequent detention, was unlawful.

Article 5 para. 1 (Art. 5-1), so far as relevant, provides as

follows:

"1. Everyone has the right to liberty and security of

person. No one shall be deprived of his liberty save in the

following cases and in accordance with a procedure

prescribed by law:

a. the lawful detention of a person after conviction by a

competent court; ..."

The Commission recalls that the terms "in accordance with a

procedure prescribed by law" and "lawful detention" in Article 5

para. 1 (Art. 5-1) refer to the applicable domestic law, and it follows

that disregard of the domestic law may entail a breach of the

Convention. However, the scope of review by the Convention organs is

limited and it is in the first place for the national authorities,

notably the courts, to interpret and apply domestic law (see Eur. Court

HR, Winterwerp v. the Netherlands judgment of 24 October 1979, Series

A no. 33, p. 18, para. 39, p. 20, paras. 45-46; No. 9997/82, Dec.

7.12.82, D.R. 31, p. 245; No. 29742/96, Dec. 24.6.96, D.R. 86-A,

p. 163).

In the present case, the Düsseldorf Court of Appeal found that the

applicant's conduct constituted the offence of espionage within the

meaning of S. 99 of the Penal Code of the Federal Republic of Germany.

The applicant's conviction was upheld by the Federal Court of Justice

by reference to the case-law of the Federal Constitutional Court. In

a decision of 15 May 1995, the Federal Constitutional Court in several

leading cases had confirmed that espionage committed by citizens of the

former German Democratic Republic within the territory of the Federal

Republic of Germany remained punishable after the German unification,

and that there was no general rule of public international law

prohibiting criminal prosecution of foreign spies in case of a peaceful

unification. In accordance with the same case-law, the Düsseldorf Court

of Appeal, in its judgment of 24 May 1996, reduced the applicant's

sentence, taking into account as mitigating circumstance that, when

committing espionage, he had still been a citizen of the German

Democratic Republic.

The Commission considers that the applicant's submissions, in

particular his views regarding the application of Article 31 of the

Hague Regulation, do not disclose any element which should render his

detention not "lawful" within the meaning of Article 5 para. 1 (a)

(Art. 5-1-a) of the Convention.

The Commission concludes that the applicant was deprived of his

liberty "in accordance with a procedure prescribed by law" and that he

was lawfully detained "after conviction by a competent court".

It follows that the applicant's complaint under Article 5 para. 1

(Art. 5-1) is manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

2. As regards the applicant's complaint under Article 6 (Art. 6) of

the Convention about the alleged lack of impartiality of the judges

sitting in the proceedings against him, the Commission has had regard

to the relevant criteria established in the case-law of the Convention

organs (Eur. Court HR, Hauschildt v. Denmark judgment of 14 May 1989,

Series A no. 154, p. 21, para. 64; Thomann v. Switzerland judgment of

10 June 1996, Reports 1996-III, No. 11, p. 815, para. 30). In the

present case, the Commission finds that the applicant's submissions

concerning the citizenship of the judges and their loyalty to the

constitutional order of the Federal Republic of Germany do not disclose

any reasonable doubts as to their impartiality in the criminal

proceedings against the applicant. Consequently, this part of the

application is also manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2).

3. The applicant further complains under Article 14 (Art. 14) of the

Convention that his conviction of espionage amounted to discrimination

on political grounds.

According to Article 14 (Art. 14), the "enjoyment of the rights

and freedoms set forth in this Convention shall be secured without

discrimination on any ground such as sex, race, colour, language,

religion, political or other opinion, national or social origin,

association with a national minority, property, birth or other status".

The Commission recalls that Article 14 (Art. 14) complements the

other substantive provisions of the Convention and its Protocols. It

has no independent existence, since it has effect solely in relation

to the rights and freedoms safeguarded by those provisions. There can

be no room for application of Article 14 (Art. 14) unless the facts of

the case fall within the ambit of one or more of such provisions (Eur.

Court HR, Inze v. Austria judgment of 28 October 1987, Series A no.

126, p. 17, para. 36).

In the present case, the applicant's complaint about

discrimination relates in substance to his complaints about his

conviction for espionage, raised under Articles 5 and 6 (Art. 5, 6).

His complaint about discrimination therefore falls within the ambit of

Article 14 (Art. 14).

Article 14 (Art. 14) safeguards individuals, placed in similar

situations, from discrimination in the enjoyment of the rights and

freedoms set forth in the Convention and its Protocols. A distinction

is discriminatory if it "has no objective and reasonable

justification", that is, if it does not pursue a legitimate aim or if

there is not a reasonable relationship of proportionality between the

means employed and the aim sought to be realised. The Contracting

States enjoy a certain margin of appreciation in assessing whether and

to what extent differences in otherwise similar situations justify a

different treatment in law (cf. Eur. Court HR, Stjerna v. Finland

judgment of 25 November 1994, Series A no. 299-B, pp. 63-64, para. 48).

The applicant submits that persons having committed espionage

against the German Democratic Republic on behalf of the Federal

Republic of Germany or its allies were not prosecuted or, to the extent

that they had been convicted by the courts of the former German

Democratic Republic, they had been rehabilitated or could be

rehabilitated.

The Commission has already found that, apart from the question

whether individuals in these two groups were in analogous situations,

the difference of treatment between them, in the application of the

laws in force, had an objective and reasonable justification and did

not amount to discrimination on political grounds (cf. No. 29742/96,

Dec. 24.6.96, D.R. 86-A, p. 163).

It follows that there is no appearance of a violation

of Article 14, taken in conjunction with Articles 5 and 6

(Art. 14+5+6), of the Convention.

Consequently, this part of the application is likewise manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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HINDRICHS v. GERMANY

HINDRICHS v. GERMANY

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