AS TO THE ADMISSIBILITY OF

                      Application No. 29357/95

                      by Gabriele GAST and Dieter POPP

                      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 1 May 1995 by

Gabriele GAST and Dieter POPP against Germany and registered on

23 November 1995 under file No. 29357/96;

     Having regard to :

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the observations submitted by the respondent Government on

     4 November 1996 and the observations in reply submitted by the

     applicants on 5 February 1997;

-    the supplementary observations of the respondent Government on

     24 April 1997;

     Having deliberated;

     Decides as follows:

THE FACTS

     The first applicant, born in 1943, is a German national and

resident in Neuried.  She is a political scientist by profession.

     The second applicant, born in 1939, is a German national and

resident in Bonn.  He is an insurance agent by profession.

A.   Particular circumstances of the case

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

summarised as follows.

I.   The criminal proceedings against the first applicant

     In 1990 criminal proceedings were initiated against the first

applicant on the suspicion of having committed espionage (geheimdienst-

liche Agententätigkeit).  On 30 September 1990 the first applicant was

arrested and taken into detention on remand on 1 October 1990.

     The trial against the first applicant and three co-accused was

held before the Bavarian Court of Appeal (Oberlandesgericht) sitting

as a court of first instance on several days in November and December

1991.  In these and the following proceedings, the first applicant was

assisted by defence counsel.

     On 19 December 1991 the Court of Appeal convicted the first

applicant and the co-accused of espionage on behalf of the former

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

Penal Code (Strafgesetzbuch).  The first applicant was sentenced to six

years and nine months' imprisonment.  The first applicant was also, for

a period of four years, deprived of the rights to hold a public office,

to vote and to be elected.  The co-accused were sentenced to two

years', one year and six months' and one year's imprisonment on

probation, respectively.

     The Court found that in 1968, in the course of her studies and

research for her thesis in political science, the first applicant had

been contacted by agents of the Ministry for State Security

(Ministerium für Staatssicherheit), the secret service of the former

German Democratic Republic.  On the occasion of a meeting in the east

sector of Berlin at the end of 1968 or in the beginning of 1969, she

had agreed to work for the Ministry concerned.  She had kept the

Ministry informed about her work at a research institute between July

1972 and June 1973.  Subsequently, upon her employment by the Federal

Intelligence Service (Bundesnachrichtendienst), she had forwarded

secret information such as reports prepared by German embassies and in

particular reports prepared by the Intelligence Service itself to the

secret service of the former German Democratic Republic. The first co-

accused, living in Munich, had operated as courier, the two further co-

accused had been secret agents of the secret service of the former

German Democratic Republic and had also been living there.

     The Court of Appeal found that the first applicant and the co-

accused had thereby committed espionage.  As regards the co-accused,

the Court, referring to a decision of the Federal Court of Justice of

29 May 1991, observed that there was no legal impediment to punishing

them; however, the fact that their prosecution had only been possible

following the German unification had to be regarded as a mitigating

circumstance.

     In fixing the first applicant's sentence, the Court of Appeal

regarded as mitigating circumstances in particular that she had no

criminal record, had a regular life and had also shown helpfulness in

taking care of a handicapped child.  She had got involved in her

criminal conduct due to her relation to one of the co-accused and she

had not managed to discontinue her contacts with the secret service of

the former German Democratic Republic.  Moreover, due to a lack of

adequate controls, she had had no particular difficulties in obtaining

and forwarding the information concerned.  Moreover, she had not

obtained any financial advantages, but she would suffer serious

professional disadvantages as a consequence of her conviction.  Finally

the Court of Appeal took into account that the first applicant had

largely admitted her guilt.  However, in view of the aggravating

circumstances, in particular the lengthy period of the first

applicant's involvement in espionage as well as the volume of secret

information forwarded, the Court of Appeal regarded a prison sentence

of six years and nine months appropriate.

     On 24 June 1992 the Third Chamber of the Federal Court of Justice

(Bundesgerichtshof), sitting with five judges, dismissed the first

applicant's appeal on points of law (Revision).

     On 12 February 1994 the first applicant was released after having

served half of her sentence.

II.  The criminal proceedings against the second applicant

     In April 1990 criminal proceedings were initiated against the

second applicant on the suspicion of having committed espionage.  On

14 May 1990 the second applicant was arrested and taken into detention

on remand.

     The trial against the second applicant and one co-accused was

held before the Düsseldorf Court of Appeal sitting as a court of first

instance on several days in December 1991.  In these and the following

proceedings, the second applicant was assisted by defence counsel.

     On 23 December 1991 the Court of Appeal convicted the second

applicant and the co-accused of espionage on behalf of the former

German Democratic Republic, pursuant to S. 99 para. 1 (1) and para. 2,

first sentence, of the Penal Code.  The second applicant was sentenced

to six years' imprisonment.  The second applicant was also, for a

period of four years, deprived of the rights to hold a public office,

to vote and to be elected.  The forfeiture of a sum of money amounting

to DEM 70,000 was ordered.  The co-accused was sentenced to two years'

imprisonment on probation, and he was, for a period of two years,

deprived of the rights to hold a public office, to vote and to be

elected.

     The Court of Appeal found that in the second half of the sixties

the second applicant had been contacted by agents of the Ministry for

State Security. At the latest in 1969, he had agreed to work for the

Ministry in question. The co-accused had acted as contact agent

(Führungsoffizier).  The applicant had incited his friend to commit

espionage on behalf of the former German Democratic Republic.  His

friend, who had died in 1989, had worked for the Federal Ministry of

Defence and had had access to secret, and partly top secret,

information.  The applicant's friend had taken copies of secret

documents, or originals thereof, to his home where the originals had

been photographed; copies and films had subsequently been forwarded by

the second applicant to the co-accused.

     The Court of Appeal observed that the second applicant and the

co-accused had thereby committed espionage within the meaning of S. 99

of the Penal Code which had been punishable at the time of their

offences and had remained punishable following the accession of the

former German Democratic Republic to the Federal Republic of Germany,

as regulated in the German Unification Act (Gesetz zu dem Vertrag vom

31. August 1990 zwischen der Bundesrepublik Deutschland und der

Deutschen Demokratischen Republik über die Herstellung der Einheit

Deutschlands) of 23 September 1990.  As regards the second applicant,

the Court noted that he had acted as a citizen of the Federal Republic

of Germany against his own country.  There was no appearance of a

violation of his right to equal treatment.  In particular, the German

legislator was not obliged to enact legislation granting an amnesty or

to limit the application of the provisions on espionage and treason.

Finally, he could not be compared to secret agents of the Federal

Intelligence Service who, irrespective of the different goals of the

secret services concerned, acted on behalf of their own country and not

against it.  As regards the co-accused, the Court, referring to a

decision of the Federal Court of Justice of 29 May 1991, observed that

there were no rules of public international law prohibiting a State

from punishing foreigners having committed espionage abroad.  Moreover,

taking into account the different goals of the Federal Intelligence

Service and the secret service of the former German Democratic

Republic, his prosecution for espionage did not amount to

discrimination against him, and the secret agents of the former German

Democratic Republic could not have any legitimate expectation not to

be punished for their conduct following the accession of the former

German Democratic Republic to the Federal Republic of Germany.

     In fixing the second applicant's sentence, the Court of Appeal

regarded as mitigating circumstances in particular that he had no

criminal record, had a regular life and had not committed espionage

primarily for financial purposes, but had pursued political ideas.

However, in view of the aggravating circumstances, in particular the

lengthy period of the second applicant's involvement in espionage, the

involvement of his late friend, the kind of secret information

forwarded as well as reasons of general crime prevention, the Court of

Appeal regarded a prison sentence of six years appropriate.  As regards

the co-accused, the Court of Appeal took into account the fact that he

was a citizen of the former German Democratic Republic and a secret

agent acting from within that territory.

     On 22 July 1992 the Third Chamber of the Federal Court of

Justice, sitting with five judges, dismissed the second applicant's

appeal on points of law.

     On 11 May 1994 the second applicant was released after having

served two third of his sentence.

III. The proceedings before the Federal Constitutional Court

     The first applicant appealed to the Federal Constitutional Court

on 18 July 1992.  Following indications as to certain formal

shortcomings in her constitutional complaint, she filed supplementary

submissions on 18 August 1992.  Her case was registered on

27 August 1992.  The second applicant's constitutional complaint of

13 August was received by the Federal Constitutional Court on

14 August 1992.

     The processing of the applicants' and other similar cases was

postponed as the Second Division of the Federal Constitutional Court

envisaged rendering a leading decision in some test cases.  On

23 March 1994 the Second Division, having considered the further action

to be taken in these cases, ordered the preparation of an expert

opinion on questions of international public law.  The expert opinion

which first should have been ready by mid August 1994 was received by

the Second Division on 11 July 1994.  The parties in the test cases

were given an opportunity to submit comments before the end of August

1994.  Deliberations were taken up again in November 1994, but again

suspended between December 1994 and March 1995.  However, during that

period, a first draft of the decision was prepared.  On 15 May 1995 the

Second Division of the Federal Constitutional Court rendered the said

leading decision (2 BvL 19/91 and others).

     On 23 May 1995 the Second Section of the Second Division of the

Federal Constitutional Court, in separate decisions, refused to admit

the first and second applicants' constitutional complaints.  The

Constitutional Court referred to SS. 93a and 93b of the Federal

Constitutional Court Act and to the decision of the Second Division of

15 May 1995, which was attached to the decisions in the applicants'

cases. The first applicant received the decision on 9 June 1995.  The

second applicant's counsel received the decision on 3 June 1995, and

the second applicant himself, on 21 June 1995.

B.   Domestic law and practice

I.   Espionage

a.   Under the criminal law of the Federal Republic of Germany,

treason (Landesverrat) is punishable under S. 94 and espionage

(geheimdienstliche Agententätigkeit) under S. 99 of the Penal Code

(Strafgesetzbuch), respectively.

     The provisions of the Penal Code are applicable to offences

committed within the territory of the Federal Republic of Germany

(Inlandstaten), pursuant to S. 3 of the Penal Code.  According to

S. 5 (4), SS. 94 and 99 are also applicable to offences committed

abroad (Auslandstaten).

b.   The Penal Code of the former German Democratic Republic also

contained provisions regarding the punishment of espionage and treason

to the disadvantage of the former German Democratic Republic or one of

its allies.  These provisions extended to espionage on behalf of the

Federal Republic of Germany.

II.  The German Unification Treaty of 31 August 1990

     The Treaty between the Federal Republic of Germany and the former

German Democratic Republic on the German Unification (Einigungsvertrag)

of 31 August 1990 abolished, with effect as from 3 October 1990, the

Penal Code of the German Democratic Republic and extended the

applicability of the criminal law of the Federal Republic of Germany

to the territory of the former German Democratic Republic (with some

exceptions irrelevant in the present context).

     In the course of the negotiations on the above Treaty, an amnesty

for persons having committed espionage on behalf of the German

Democratic Republic was considered; however, this matter was not

pursued on account of hesitations among members of the general public

and of envisaged difficulties in the Federal Diet (Bundestag).  Further

attempts to introduce such an amnesty in 1990 and 1993, respectively,

remained unsuccessful.

III. Procedure before the Federal Constitutional Court

     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, under Articles 33, 101, 103,

or 104 has been violated by 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

whether a rule of public international law is an integral part of

federal law and whether such rule directly creates rights and duties

for the individual.

     According to S. 93a and S. 93b of the Federal Constitutional

Court Act (Bundesverfassungsgerichtsgesetz), a constitutional complaint

is not admitted for an examination on its merits, if it raises no

constitutional issue of fundamental importance and if its examination

is not necessary for the protection of the complainant's constitutional

rights.

IV.  Federal Constitutional Court decision of 15 May 1995

     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 prosecuted.  Furthermore, numerous persons convicted

of such offences lodged constitutional complaints 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 Second Division of the Federal Constitutional

Court rendered a leading decision on the request submitted by the

Berlin Court of Appeal and three of the constitutional complaints.

     In its decision, the Federal Constitutional Court recalled its

case-law according to which the prosecution for treason and espionage

as provided for under SS. 94 and 99 of the Penal Code amounted to an

interference with the rights to liberty under Article 2 of the Basic

Law which was justified from a constitutional point of view.  This

finding also applied to the extent that secret agents of the former

German Democratic Republic were liable to punishment even if they had

only acted within the territory of the former German Democratic

Republic or abroad.  In this respect, the Constitutional Court

considered that the relevant provisions of the Penal Code aimed at

protecting the external security of the Federal Republic of Germany,

and took into account that the offences in question had been committed

at a time when the Federal Republic of Germany was particularly exposed

to secret service operations of its enemies.

     However, according to the Constitutional Court, the question

arose whether or not the accession of the German Democratic Republic

to the Federal Republic of Germany required a new appraisal of the

constitutional issues, in particular with regard to espionage committed

from the territory of the German Democratic Republic by persons who

were citizens of the German Democratic Republic and living there.

     The Constitutional Court found that the fact that espionage on

behalf of the former German Democratic Republic was prosecuted as a

criminal offence whereas 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 did not amount to discrimination.  Rather, such

difference in treatment resulted from the particularities of national

security rules (Staatsschutzrecht), which protected the State against

espionage by foreign powers.  Thus, espionage against the Federal

Republic of Germany on behalf of the German Democratic Republic

remained a punishable act even after the accession of that State.

     Moreover, the punishment of espionage on behalf of the former

German Democratic Republic following the unification of Germany did not

breach any general rules of public international law, contrary to

Article 25 of the Basic Law.  The Constitutional Court, having regard

to a legal opinion of the Heidelberg Max-Planck-Institute for foreign

public law and public international law of 1 July 1994, 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.  There

was no justification for espionage under public international law and

there were no rules on the criminal liability for espionage following

the accession of another State.

     Furthermore, the prosecution of espionage on behalf of the former

German Democratic Republic on the basis of the penal laws in force in

the Federal Republic of Germany at the time of the offences concerned

did not amount to a violation of the rule that no act could be

prosecuted if it was not a criminal offence under the relevant law at

the time when it was committed.  The Constitutional Court noted that

the scope of the provisions on treason and espionage was determined by

SS. 3, 5 and 9 of the Penal Code, which had been in force before the

time of the offences in question.  The extension of the jurisdiction

of the Federal Republic of Germany regarding such offences was a

consequence of the accession and the Unification Treaty.

     The Constitutional Court next examined whether or not the results

of this extension of the jurisdiction of the Federal Republic of

Germany amounted to a breach of the rule of law (Rechtsstaatsprinzip),

and, in particular, the principle of proportionality.

     The Constitutional Court found that, in the unique situation of

the unification of Germany, the prosecution of citizens of the former

German Democratic Republic, who had been living in the former German

Democratic Republic and had acted solely within the territory of the

German Democratic Republic or of other States where they were safe from

extradition or punishment, violated the principle of proportionality.

Consequently, there was a technical bar to prosecution (Verfolgungs-

hindernis) regarding this group of persons.  Criminal prosecution and

punishment as a means of protecting legal interests should not result

in a disproportionate interference with the rights of the persons

concerned.

     In this context, the Constitutional Court considered the

difference between the punishment for espionage and for other criminal

offences.  Public international law did not prohibit espionage, but

also allowed the State spied out to punish spies even if this person

had only acted abroad.  There was no differentiation between espionage

on behalf of a totalitarian State or espionage on behalf of a State

with a free democratic basic order.  Thus, espionage had an ambivalent

nature: it served the interests of the observing State where it was

accordingly regarded as lawful, and prejudiced the interests of the

State being spied out where it was therefore regarded as a punishable

offence.  Punishment of foreign spies was not, therefore, justified on

account of a general moral value-judgment of reproach (Unwerturteil)

regarding the espionage act, but only for the purpose of protecting the

State spied out.

     According to the Federal Constitutional Court, the fall of the

German Democratic Republic, and thereby termination of any protection

for its spies, together with the replacement of its legal order by that

of the Federal Republic of Germany which rendered prosecution possible,

resulted in a disproportionate prejudice to the group of offenders who

had committed espionage on behalf of the German Democratic Republic

solely within the latter's territory and had not left the sphere of its

protection, or had only been within the territory of other States where

they had not risked extradition or punishment in respect of such acts.

The unification had at the same time repealed the punishment of

espionage activities on behalf of the Federal Republic of Germany.  The

Court further found that any punishment of this group of persons would

jeopardise the process of creating German unity.

     With regard to other 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 as the above conditions were not necessarily all

met.  However, those persons had, as a consequence of the fall of the

German Democratic Republic, also lost the protection of that State, if

only the expectation to be exchanged in case of their arrest.

Moreover, even being confronted with the legal order of the Federal

Republic of Germany, these persons might have mainly adjusted their

sense of responsibility (Unrechtsbewußtsein) to the legal order of the

former German Democratic Republic.  Above all, they were meanwhile

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

prosecution should be continued, or in fixing the sentence.

     In their separate opinion to the Federal Constitutional Court's

judgment, three judges of the Second Division explained that they

disagreed with the judgment as far as the finding of a technical bar

to the prosecution of a group of persons having committed espionage was

concerned.

COMPLAINTS

     The remaining part of the application concerns the first and

second applicants' complaint that the length of their constitutional

complaint proceedings before the Federal Constitutional Court exceeded

a reasonable time and therefore violated Article 6 para. 1 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 1 May and registered on

23 November 1995.

     On 24 June 1996 the Commission decided to communicate the

applicants' complaint about the length of the constitutional court

proceedings to the respondent Government.  The remainder of the

application was declared inadmissible.

     The Government's written observations were, after an extension

of the time-limit, submitted on 4 November 1996.  The applicants

replied on 5 February 1997, also after an extension of the time-limit.

The Government amended their observations on 24 April 1997.

THE LAW

     The applicants complain under Article 6 (Art. 6) of the

Convention about the length of their constitutional complaint

proceedings before the Federal Constitutional Court.

     Article 6 para. 1 (Art. 6-1), as far as relevant, provides as

follows:

     "In the determination of ... any criminal charge against him,

     everyone is entitled to a ... hearing within a reasonable time

     by [a] ... tribunal..."

     The Government maintain that the complaints are incompatible

ratione materiae with the provisions of the Convention.  They submit

that the Federal Constitutional Court does not determine any criminal

charges, but its review is limited to particular aspects in connection

with the application of criminal law.  If successful the applicants'

constitutional complaints could only have resulted in a finding by the

Constitutional Court that their convictions had been unconstitutional,

that the respective convictions be set aside and their cases be sent

back to the competent criminal courts.

     The Government further submit that the applicants' cases formed

part of a large number of cases concerning the punishment of espionage

following German unification. The proceedings necessitated the

preparation of an expert opinion on questions of international law.

According to them, the complexity of the matter appears best from the

Constitutional Court's decision of 15 May 1995 in the leading cases.

     Moreover, the Government, referring to the special features of

the procedure in the Federal Constitutional Court and the specific

nature of the present case, consider that no unreasonable delays are

imputable to the Federal Constitutional Court.  They submit in

particular that over the same period the Federal Constitutional Court

had to rule on more urgent cases of considerable political importance.

     In this respect, the Government, referring to information

obtained from the Second Division of the Federal Constitutional Court,

explain that the first cases concerning convictions for espionage after

the German unification had been registered in 1991.  Further cases were

received between 1992 and 1994. It had initially been envisaged to

prepare the test cases for deliberations as from autumn 1992.  The

Second Division changed this planning in the summer of 1992 as it

regarded other cases as more urgent, namely proceedings concerning the

reform of the legal provisions relating to abortion (terminated in May

1993), proceedings concerning the challenge to the Maastricht Treaty,

which had great importance for the ratification of this Treaty and the

future of the European Communities (terminated in October 1993),

proceedings concerning the punishment for dealing with cannabis

(terminated in March 1994), proceedings concerning missions of the

German Armed Forces in former Yugoslavia and Somalia (terminated in

July 1994), proceedings concerning subsidies for the national coal-

mining industry which had been pending since 1986 (terminated in

October 1994) as well as several other less complex cases.

     The applicants dispute the Government's views.

     The Commission, having regard to the arguments advanced by the

parties on the question of the applicability of Article 6 para. 1

(Art. 6-1) of the Convention to the complaint proceedings before the

Federal Constitutional Court, finds that in the present case this

question raises complex legal issues which cannot be decided at the

admissibility stage, but must be joined to the examination of the

merits of the applicants' complaint.  In this respect, the Commission

considers, in the light of the case-law of the Convention organs on the

question of "reasonable time", and having regard to all the information

in its possession, that a thorough examination of this complaint is

required, both as to the law and as to the facts.  The Commission

concluded therefore, that the remainder of the application is not

manifestly ill-founded, within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for declaring it

inadmissible have been established.

     For these reasons, the Commission, by a majority,

     DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE,

     without prejudging the merits of the case.

        M. de SALVIA                        S. TRECHSEL

         Secretary                           President

     to the Commission                    of the Commission