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