Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 32831/96

by J. O.

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 16 October 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

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 12 July 1996 by

J. O. against Germany and registered on 30 August 1996 under file

No. 32831/96;

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 1965, is a German national and resident

in Magdeburg. In the proceedings before the Commission he is

represented by Mr. A. Streubel, a lawyer practising in Berlin.

A. Particular circumstances of the case

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

summarised as follows.

On 5 May 1995 the Brandenburg Ministry of the Interior

(Ministerium des Innern), pursuant to S. 3 of the Association Act

(Vereinsgesetz), issued a prohibition order against the association

"Direkte Aktion/Mitteldeutschland (JF)", which was found to pursue

activities directed against the German constitutional order. The order

was directed to the association concerned and, still in May, mailed

care of, inter alia, the applicant. In the reasoning of the

prohibition order, the applicant was mentioned as a leading member of

the said association.

The applicant, represented by counsel, commenced proceedings in

the Frankfurt/Oder Administrative Court of Appeal (Oberverwaltungs-

gericht) to set aside (Anfechtungsklage) the prohibition order to the

extent that he was concerned. He complained that the order, in its

reasoning, incorrectly mentioned him as member of the association and

also that a copy of the order was mailed to him.

On 12 October 1995 the Administrative Court of Appeal declared

the action inadmissible. It found that the applicant had no capacity

to take the said proceedings. Referring to S. 42 para. 2 of the Code

of Administrative Court Procedure (Verwaltungsgerichtsordnung), the

Court found that such an action was only admissible to the extent that

the plaintiff claimed that the prohibition order violated his own

rights. However, the prohibition order had been directed against the

association concerned, and, accordingly, only the association itself

could lodge an action to set aside the order. Individual members had

no right to appeal. All the more the applicant, claiming not to be a

member of the prohibited association, could not lodge an action to set

aside the prohibition order. His submissions concerning the mailing

of the order or its reasoning could not be heard in the particular type

of proceedings before the Court of Appeal. Leave to appeal on points

of law (Revision) was not granted.

On 21 February 1996 the Federal Administrative Court

(Bundesverwaltungsgericht) rejected the applicant's request for leave

to appeal on points of law (Beschwerde gegen die Nichtzulassung der

Revision) on the ground that the applicant had failed to specify any

ground of appeal (Revisionszulassungsgrund) in accordance with the

relevant provisions of the Code of Administrative Court Procedure. His

argument that, contrary to the findings of the Administrative Court of

Appeal, he should be entitled to bring an action to set aside the

prohibition order of 5 May 1995 to the extent that the order was

directed against him, did not show any fundamental importance of the

case or any procedural defects. The Federal Administrative Court

considered in particular that it need not resolve the question as to

how far individual members of a prohibited association could lodge an

action to set aside the prohibition order as, according to the

applicant's own submissions, he was not a member of the association

concerned. However, third parties could not appeal against a

prohibition order. Furthermore, to the extent that the mailing of the

order to the applicant and his being mentioned in the reasoning

amounted to a violation of his rights, he could not claim that the

prohibition order be set aside. Questions related to the alleged

violations of the applicant's own rights could not, therefore, be

raised in the context of the proceedings brought by him. Pursuant to

S. 48 para. 2 of the Code of Administrative Court Procedure, the

Administrative Court of Appeal, as a court of first instance, was

solely competent to decide upon actions to set aside prohibition orders

issued under S. 3 para. 2 No. 1 of the Association Act, and the related

orders on the prohibition of further activities and the founding of

similar associations under S. 8 para. 2 of the Association Act. The

applicant's complaints were not included.

On 7 June 1996 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde) about the decision of the Federal

Administrative Court of 21 February 1996.

B. Relevant domestic law

a. The German Association Act (Vereinsgesetz)

The Association Act regulates public-law questions regarding

associations. S. 3 provides that associations which are directed

against the constitutional order may be prohibited and for the

confiscation of the association's property. According to S. 8, further

activities of the prohibited association are prohibited, likewise it

is prohibited to found associations for the purposes of replacing the

prohibited association or to use existing associations for that

purpose.

b. The Administrative Court procedure

The jurisdiction of the German administrative courts and the

procedure before them are regulated in the Code of Administrative Court

Procedure (Verwaltungsgerichtsordnung).

S. 2 provides for an administrative court system of three

instances, i.e. the Administrative Courts (Verwaltungsgerichte) and

Administrative Courts of Appeal (Oberverwaltungsgerichte) as well as

the Federal Administrative Court (Bundesverwaltungsgericht).

According to S. 40 para. 1, administrative courts are, as a rule,

competent to decide on all public-law disputes.

There are various judicial remedies, such as the general action

to set aside an administrative act (Anfechtungsklage), the action to

order an authority to take a particular decision (Verpflichtungsklage)

or general actions for performance or omission, or for a declaratory

judgment (Feststellungsklage).

An administrative court action claiming a prohibitory injunction

against a public authority regarding allegedly incorrect statements,

as well as their withdrawal or correction, may be founded on the basic

rights of the individual concerned, in particular the right to the free

development of his personality under Article 2 para. 1, in conjunction

with Article 1 of the Basic Law (Grundgesetz), protecting human

dignity.

S. 48 establishes a special competence of the Administrative

Court of Appeal to decide, as a court of first instance, upon actions

to set aside prohibition orders issued under S. 3 para. 2 (1) of the

Association Act, and the related orders on the prohibition of further

activities and the founding of similar associations under S. 8 para. 2

of the Association Act.

COMPLAINTS

The applicant complains that the prohibition order of 5 May 1995

amounts to a violation of his rights to freedom of expression and to

freedom of association. He submits that he was never a member of the

prohibited association, but, following the prohibition order in

question, he is regarded and possibly penalised as being such a member.

He invokes Article 1 of the Convention.

THE LAW

The applicant complains that the prohibition order of 5 May 1995

against the association "Direkte Aktion/Mitteldeutschland (JF)" was

mailed to him and, in its reasoning, wrongly mentioned him as a leading

member of the prohibited organisation.

However, the Commission is not required to decide whether or not

the applicant's complaint discloses any appearance of a violation of

the Convention as, under Article 26 (Art. 26) of the Convention, it may

only deal with a matter after all domestic remedies have been exhausted

according to the generally recognised rules of international law.

The Commission recalls that Article 26 (Art. 26) of the

Convention requires the exhaustion of remedies which relate to the

breaches of the Convention alleged and at the same time can provide

effective and sufficient redress (cf. No. 11660/85, Dec. 19.1.89, D.R.

59 p. 85). The basis of this rule is that, before proceedings are

brought in an international tribunal, the respondent State must have

had an opportunity to redress the alleged damage by domestic means

within the framework of its own legal system (cf. No. 5964/72, Dec.

29.9.75, D.R. 3 p. 57).

The Commission notes that on 12 October 1995 the Frankfurt/Oder

Administrative Court of Appeal declared the applicant's action to set

aside the decision of 5 May 1995 inadmissible. The Administrative

Court of Appeal found that the applicant had no capacity to take such

proceedings, and that matters related to its service or its reasoning

could not be reviewed in the type of proceedings before it. This

approach was confirmed by the Federal Administrative Court. The

applicant's constitutional complaint was to no avail.

In these circumstances, the Commission finds that the action

initiated by the applicant before the Administrative Court of Appeal

under S. 48 of the Code of Administrative Court Procedure was not an

effective remedy, for the purposes of Article 26 (Art. 26) of the

Convention, with regard to his complaints. The applicant failed to

bring an action before the competent Administrative Court claiming a

prohibitory injunction, and/or rectification with regard to the

allegedly incorrect statements by the Brandenburg Ministry of the

Interior in the impugned prohibition order.

Consequently, the applicant has not exhausted the remedies

available to him under German law, as required under Article 26

(Art. 26). Furthermore, 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.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

Menu

J.O. v. GERMANY

J.O. v. GERMANY

LEXI