AS TO THE ADMISSIBILITY OF

                      Application No. 29357/95

                      by Gabriele GAST, Dieter POPP

                      and Horst TISCHLER

                      against Germany

     The European Commission of Human Rights sitting in private on

24 June 1996, the following members being present:

           MM.   S. TRECHSEL, President

                 H. DANELIUS

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 J.-C. SOYER

                 H.G. SCHERMERS

           Mrs.  G.H. THUNE

           Mr.   F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

                 G.B. REFFI

                 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

           Mr.   H.C. KRÜGER, 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, Dieter POPP and Horst TISCHLER against Germany and

registered on 23 November 1995 under file No. 29357/95;

     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 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.

     The third applicant, born in 1941, is a German national and

resident in Munich.  He is an administrative consultant by profession.

A.   Particular circumstances of the case

     The facts of the case, as they have been submitted by the

applicants, may be summarised as follows.

I.   The first applicant

     In 1990 criminal proceedings were initiated against the first

applicant on suspicion of having committed espionage (geheimdienstliche

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 Staats-Sicherheit), 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

(Bundesgerichtshof) 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 relationship with 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 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

as appropriate.

     On 24 June 1992 the Third Senate of the Federal Court of Justice,

sitting with five judges, dismissed the first applicant's appeal on

points of law (Revision).

     On 23 May 1995 a panel of three judges of the Second Senate of

the Federal Constitutional Court (Bundesverfassungsgericht) refused to

admit the first applicant's constitutional complaint

(Verfassungsbeschwerde) of 18 July 1992 about her conviction of

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

Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz) and

to a decision of the Second Senate of 15 May 1995 (2 BvL 19/91 and

others), which was attached to its decision in the first applicant's

case.  The first applicant received this decision on 9 June 1995.

II.  The second applicant

     In 1990 the 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 DM 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 partly taken copies of secret

documents, or originals thereof, home where the originals were

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 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 committed espionage not

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 and nine months as

appropriate.  As regards the co-accused, the Court of Appeal took his

situation as citizen of the former German Democratic Republic and

secret agent acting from that territory into account.

     On 22 July 1992 the Third Senate of the Federal Court of Justice,

sitting with five judges, dismissed the second applicant's appeal on

points of law.

     On 23 May 1995 a panel of three judges of the Second Senate of

the Federal Constitutional Court refused to admit the second

applicant's constitutional complaint of 13 August 1992 about his

conviction of espionage.  The Constitutional Court referred to SS. 93a

and 93b of the Federal Constitutional Court Act and to a decision of

the Second Senate of 15 May 1995 (2 BvL 19/91 and others), which was

attached to its decision in the second applicant's case.  The second

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

applicant himself on 21 June 1995.

III. The third applicant

     Apparently in 1992 criminal proceedings were initiated against

the third applicant on the suspicion of having committed espionage.

He was heard on the charges against him on 28 April 1992.

     The trial against the third applicant was held before the

Bavarian Court of Appeal sitting as a court of first instance on

several days in February 1994.  In these and the following proceedings,

the third applicant was assisted by defence counsel.

     On 11 February 1994 the Court of Appeal convicted the third

applicant of espionage on behalf of the former German Democratic

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

applicant was sentenced to one year's imprisonment on probation.  He

was also, for a period of three 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 DM 20,000 was ordered.

     The Court of Appeal found that in 1974 the third applicant,

member of a political party, i.e. the CSU, had been contacted by an

agent of the Ministry for State Security.  Approximately in the

beginning of 1975, he had agreed to work for the Ministry in question

and to forward information on the CSU and its working committees.  He

also forwarded information on members of a Munich private association.

     The Court of Appeal observed that the third applicant had thereby

committed espionage within the meaning of S. 99 of the Penal Code. The

applicant's espionage was directed against the Federal Republic to the

extent that a political party in the Federal Republic of Germany was

spied on and that further contacts with Federal citizens by secret

agents of the former German Democratic Republic were prepared.

Moreover, the results of exploring a political party such as the CSU

could enable the former German Democratic Republic to prepare and

conduct political attacks against the Federal Republic of Germany.

     In fixing the third 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 got involved in espionage

due to his friendship with a citizen of the former German Democratic

Republic.  However, in view of the aggravating circumstances, in

particular the lengthy period of the third applicant's involvement in

espionage, the Court of Appeal regarded a prison sentence of one year

as appropriate.  The Court of Appeal considered that the execution of

this term of imprisonment could be suspended on probation.

     On 28 September 1994 the Third Senate of the Federal Court of

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

appeal on points of law.

     On 23 May 1995 a panel of three judges of the Second Senate of

the Federal Constitutional Court refused to admit the third applicant's

constitutional complaint of 4 November 1994 about his conviction of

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

Federal Constitutional Court Act and to a decision of the Second Senate

of 15 May 1995 (2 BvL 19/91 and others), which was attached to its

decision in the third applicant's case.  The decision was served on

1 June 1995.

B.   Domestic law and practice

I.   Acts of 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.

     S. 94 of the Penal Code provides as follows:

     "1.   Wer ein Staatsgeheimnis

     (1)   einer fremden Macht oder einer ihrer Mittelsmänner

     mitteilt oder

     (2)   sonst an einen Unbefugten gelangen läßt oder

     öffentlich bekannt macht, um die Bundesrepublik Deutschland

     zu benachteiligen oder eine fremde Macht zu begünstigen,

     und dadurch die Gefahr eines schweren Nachteils für die

     äußere Sicherheit der Bundesrepublik Deutschland

     herbeiführt, wird mit Freiheitsstrafe nicht unter einem

     Jahr bestraft.

     2.    In besonders schweren Fällen ist die Strafe

     lebenslange Freiheitsstrafe oder Freiheitsstrafe nicht

     unter fünf Jahren.  Ein besonders schwerer Fall liegt in

     der Regel vor, wenn der Täter

     (1)   eine verantwortliche Stellung mißbraucht, die ihn zur

     Wahrung von Staatsgeheimnissen besonders verpflichtet, oder

     (2)   durch die Tat die Gefahr eines besonders schweren

     Nachteils für die äußere Sicherheit der Bundesrepublik

     Deutschland herbeiführt."

     "1.   Anybody who

     (1)   communicates a State secret to a foreign power or one

     of its agents or

     (2)   otherwise puts a State secret at the disposal of a

     person not authorised to have knowledge of it, or discloses

     it to the public, in order to prejudice the Federal

     Republic of Germany or to favour a foreign power,

     and thereby creates a risk of a serious prejudice to the

     external security of the Federal Republic of Germany, shall

     be liable to imprisonment for a period of not less than one

     year.

     2.    In particularly serious cases, the punishment shall be

     life imprisonment or imprisonment for a period of not less

     than five years.  In general, a case has to be regarded as

     a particularly serious one if the offender

     (1)   abuses a responsible post where he was under a

     particular duty to keep State secrets, or

     (2)   as a consequence of the offence, creates a risk of a

     particularly serious prejudice to the external security of

     the Federal Republic of Germany."

     S. 99 of the Penal Code, as far as relevant, provides as follows:

     "1.   Wer

     (1)   für den Geheimdienst einer fremden Macht eine

     geheimdienstliche Tätigkeit gegen die Bundesrepublik

     Deutschland ausübt, die auf die Mitteilung oder Lieferung

     von Tatsachen, Gegenständen oder Erkenntnissen gerichtet

     ist, oder

     (2)   gegenüber dem Geheimdienst einer fremden Macht oder

     einem seiner Mittelsmänner sich zu einer solchen Tätigkeit

     bereit erklärt,

     wird mit Freiheitsstrafe bis zu fünf Jahren oder mit

     Geldstrafe bestraft, wenn die Tat nicht in § 94 oder ...

     mit Strafe bedroht ist.

     2.    In besonders schweren Fällen ist die Strafe

     Freiheitsstrafe von einem Jahr bis zu zehn Jahren.  Ein

     besonders schwerer Fall liegt in der Regel vor, wenn der

     Täter Tatsachen, Gegenstände oder Erkenntnisse, die von

     einer amtlichen Stelle oder auf deren Veranlassung

     geheimgehalten werden, mitteilt oder liefert und wenn er

     (1)   eine verantwortliche Stellung mißbraucht, die ihn zur

     Wahrung solcher Geheimnisse besonders verpflichtet, oder

     (2)   durch die Tat die Gefahr eines schweren Nachteils für

     die Bundesrepublik Deutschland herbeiführt.

     ..."

     "1.   Anybody who

     (1)   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, or

     (2)   agrees with the secret service of a foreign power or

     one of its agents to pursue such an activity,

     shall be liable to imprisonment for a period not exceeding

     five years or a fine, unless the offence is punishable

     under S. 94 ...

     2.    In particularly serious cases, the punishment shall be

     imprisonment for a period of from one to ten years.  In

     general, a case has to be regarded as a particularly

     serious one if the offender communicates or forwards facts,

     objects or findings, which are kept secret by a public

     authority or upon the instruction by a public authority,

     and if he

     (1)   abuses a responsible post where he was under a

     particular duty to keep such secrets, or

     (2)   as a consequence of his offence, creates a risk of a

     serious prejudice to the Federal Republic of Germany.

     ..."

     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 acts of espionage on behalf of the German

Democratic Republic was considered. However, this matter was not

pursued on account of hesitations in 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

(Grundgesetz), 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

a 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 Federal Constitutional Court rendered a

leading decision on the request submitted by the Berlin Court of Appeal

and three 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 acts of espionage

within the meaning of SS. 94 and 99 of the Penal Code, 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 of espionage by a State

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

(Verfolgungshindernis) 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 on 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 on 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 on.

     According to the Federal Constitutional Court, the fall of the

German Democratic Republic, and thereby the 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 counteract the process of

creating the 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 if they knew about the legal order of the Federal

Republic of Germany, these persons possibly mainly adjusted their sense

of culpability (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 Senate 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

1.   The applicants complain under Article 5 of the Convention that

their detention is unlawful on the ground that, following the German

unification, there was no legal basis for their conviction and

subsequent detention in respect of espionage on behalf of the former

German Democratic Republic.  They consider that, on the occasion of the

German unification, both the former German Democratic Republic and the

Federal Republic of Germany ceased to exist and a new State came into

existence: the unified Germany.  The reciprocal rules on espionage

were, therefore, no longer applicable.

2.   The applicants further complain under Article 14, in conjunction

with Articles 5 and 10, of the Convention that their respective

convictions of espionage amounted to discrimination on political

grounds.  They submit that 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.

Moreover, the punishment of citizens of the former German Democratic

Republic was less severe, or in particular circumstances, there was

even a technical bar to their prosecution.  They consider that the

Federal Constitutional Court had wrongly applied the principle of

proportionality and disregarded the necessity of protecting persons

acting in good faith.

3.   The applicants also complain that the Federal Court of Justice

was not an impartial tribunal established by law within the meaning of

Article 6 of the Convention.  Referring to a judgment of one of the

senates of the Federal Court of Justice deciding in civil matters (X.

Zivilsenat) of March 1993, they maintain that, according to a general

practice, the composition of the benches was not fixed in advance, but

the president of each senate determined the date for hearings and the

composition of the senate at a particular session.

4.   Moreover, they complain under Article 6 of the Convention that

the Federal Constitutional Court refused to admit their individual

constitutional complaints for an examination of their merits.  They

also consider that the Federal Constitutional Court was not an

impartial tribunal established by law.  In this respect they submit

that half of the judges of the Federal Constitutional Court are elected

by a group of twelve members of the Federal Diet, who are members of

the Government parties and the strongest opposition party, whereas

smaller parties are not represented in this group.

5.   The applicants finally complain under Article 6 of the Convention

about the length of their constitutional complaint proceedings before

the Federal Constitutional Court.

THE LAW

1.   The applicants complain under Article 5 para. 1 (Art. 5-1) of the

Convention that their respective convictions of espionage, and

consequently their subsequent detention, were 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 observes that, while the first applicant was

sentenced to six years and nine months' unconditional imprisonment, and

the second applicant to six years' unconditional imprisonment, the

third applicant was sentenced to one year's imprisonment on probation.

The third applicant did not submit that the suspension was revoked and

that he had to serve his prison sentence.  In these circumstances, the

Commission finds that the third applicant cannot claim to be a victim,

within the meaning of Article 25 para. 1 (Art. 25-1) of the Convention,

of any violation of his right under Article 5 para. 1 (Art. 5-1) of the

Convention.

     As regards the complaints raised by the first and second

applicants, 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

H.R., Winterwerp judgment of 24 October 1979, Series A no. 33, p. 18,

para. 39, p. 20, paras. 45-46; Eur. Commission H.R., No. 9997/82, Dec.

7.12.82, D.R. 31 p. 245).

     In the present case, the Bavarian Court of Appeal and the

Düsseldorf Court of Appeal, as confirmed by the Federal Court of

Justice and the Federal Constitutional Court, held that the respective

applicants' conduct constituted the offence of espionage within the

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

which was applicable in the circumstances of their cases and required

prosecution.

     The Commission considers that the applicants' submissions, in

particular their views regarding the consequences of the German

unification on the applicability of the penal laws of the Federal

Republic of Germany in the field of espionage, do not disclose any

element to render their detention not "lawful" within the meaning of

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

     The Commission concludes that the first and second applicants

were deprived of their liberty "in accordance with a procedure

prescribed by law" and that they were lawfully detained "after

conviction by a competent court".

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

(Art. 5-1) of the Convention is manifestly ill-founded within the

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

2.   The applicants further complain under Article 14, in conjunction

with Articles 5 and 10 (Art. 14+5+10), of the Convention that their

respective convictions 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 H.R., Inze judgment of 28 October 1987, Series A no. 126, p. 17,

para. 36).

     To the extent that the applicants rely on Article 5 (Art. 5), the

Commission refers to its above findings that only the first and second

applicants were sentenced to imprisonment, whereas the third applicant

cannot claim to be the victim of a violation of his right to liberty

after his conviction of espionage.  The applicants further invoke their

right to freedom of expression under Article 10 (Art. 10) of the

Convention.  The Commission considers that the applicants' complaints

about discrimination relate in substance to their respective

convictions of espionage and may be taken into account under Article

10 para. 1 (Art. 10-1), which includes, as part of the right to freedom

of expression, the right to impart information.  Their complaint may

therefore be said to fall 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".  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 (Eur.

Court H.R., Stjerna judgment of 25 November 1994, Series A no. 299-B,

pp. 63-64, para. 48).

     The applicants submit that 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. Moreover, the punishment of citizens of the former

German Democratic Republic was less severe, or in particular

circumstances, there was even a technical bar to their prosecution.

They consider that the Federal Constitutional Court had wrongly applied

the principle of proportionality and disregarded the necessity of

protecting persons acting in good faith.

     As regards the applicants' first argument, the Commission notes

that the applicants, citizens of the Federal Republic of Germany, were

convicted of espionage pursuant to S. 99 of the Penal Code of the

Federal Republic of Germany, i.e. of having committed, on behalf of a

foreign power, espionage against the Federal Republic of Germany, or

agreed to pursue such an activity.  The Federal Constitutional Court,

considering the possible consequences of the accession of the German

Democratic Republic to the Federal Republic of Germany, 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.

According to the Federal Constitutional Court, such difference in

treatment resulted from the particularities of national security rules

which the States were entitled to enact under public international law.

Thus, acts of espionage were of an ambivalent nature: they served the

interests of the observing State where they were accordingly regarded

as lawful, and prejudiced the interests of the State being spied on

where they were therefore regarded as punishable offences.

     The Commission finds that the difference in treatment complained

of followed from the fact that the applicants, having committed

espionage against the Federal Republic of Germany, were convicted under

S. 99 of the Penal Code of the Federal Republic of Germany, which

continued to exist as in force at the time of the offences committed

by them, whereas the relevant provisions of the penal law of the former

German Democratic Republic on the punishment of espionage against the

former German Democratic Republic had been repealed upon its accession

to the Federal Republic of Germany.  The Commission considers 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.  The Commission, referring to the findings of the

Federal Constitutional Court, observes that the Federal Republic of

Germany, in prosecuting espionage, sought to protect its own security

interests against, from its point of view, unlawful acts of espionage

on behalf of foreign powers.  Having also regard to the margin of

appreciation left to the Contracting States, the Federal Republic of

Germany did not discriminate, on political grounds, against the

applicants when prosecuting them for espionage.

     As regards the applicants' complaint about discrimination as

compared to citizens of the former German Democratic Republic, the

Commission had regard to the findings of the Federal Constitutional

Court according to which the accession of the German Democratic

Republic to the Federal Republic of Germany had repercussions on the

prosecution of citizens of the former German Democratic Republic for

espionage against the Federal Republic of Germany.   The Commission

finds that the explanations given by the Federal Constitutional Court,

relating in particular to the fall of the German Democratic Republic

together with the replacement of its legal order by that of the Federal

Republic of Germany, can be regarded as an objective and reasonable

justification in this respect.

     It follows that there is no appearance of a violation

of Article 14, taken in conjunction with Articles 5 or 10

(Art. 14+5+10) 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.

3.   The applicants further complain under Article 6 (Art. 6) about

the composition of the Federal Court of Justice and submit that their

respective appeals on points of law were not determined by an impartial

tribunal established by law.

     According to Article 26 (Art. 26) of the Convention, the

Commission may only deal with the matter after all domestic remedies

have been exhausted, according to the generally recognised rules of

international law, and within a period of six months from the date on

which the final decision was taken.  In the present case, the

applicants failed to show that, in their respective constitutional

complaints, they raised with the Federal Constitutional Court the above

issue, which they now wish to bring before the Commission.

Furthermore, the applicants did not raise the issue of the composition

of the competent senate of the Federal Court of Justice in the appeal

proceedings before it. Even assuming that they only learnt about the

relevant circumstances following a decision of the Federal Court of

Justice of March 1993 and could no longer bring the matter before the

Federal Constitutional Court, the Commission finds that the applicants

failed to lodge their  complaints within a period of six months from

that date at the latest.  Their application was only submitted on 1 May

1995.     The Commission further considers that the applicants, referring

to the judgment of one of the senates of the Federal Court of Justice

deciding in civil matters (X. Zivilsenat) of March 1993, merely allege

a general practice according to which the composition of the benches

was not in accordance with the law.  However, the applicants failed to

show that the senates sitting in criminal cases had pursued such a

practice. They further did not indicate the composition of the Third

Senate of the Federal Court of Justice having decided on their

respective appeals on points of law nor the practice followed by that

Senate at the relevant time.  Moreover, their submissions do not

disclose any element which could constitute a reason for questioning,

on subjective or objective grounds the impartiality of the judges of

the Third Senate.  In these circumstances, the Commission finds no

indication that, when determining the applicants' respective appeals

on points of law, the Third Senate of the Federal Court of Justice was

not an impartial tribunal established by law.

     It follows that this part of the application is also manifestly

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

4.   Moreover, they complain under Article 6 (Art. 6) of the

Convention that the Federal Constitutional Court refused to admit their

individual constitutional complaints for an examination of their

merits.  They also consider that the Federal Constitutional Court was

not an impartial tribunal established by law.  In this respect they

submit that half of the judges of the Federal Constitutional Court are

elected by a group of twelve members of the Federal Diet, who are

members of the Government parties and the strongest opposition party,

whereas smaller parties are not represented in this group.

     The Commission finds that the decision of the Federal

Constitutional Court not to admit the applicants' constitutional

complaints for an examination on the merits following a decision in

leading cases regarding the relevant constitutional issues, does not

disclose any breach of their right of access to court, contrary to

Article 6 para. 1 (Art. 6-1) of the Convention.  Furthermore, the

Commission, having regard to the case-law of the Convention organs (cf.

Eur. Court H.R., Hauschildt judgment of 24 May 1989, Series A no. 154,

p. 22, paras. 50-51), considers that the applicants' complaint about

the alleged lack of impartiality of the Federal Constitutional Court

does not disclose any element of personal bias on the part of the

judges having decided in the applicants' cases.  Moreover, their

submissions regarding the elections of judges to the Federal

Constitutional Court do not justify any fears as to their impartiality

applying an objective test. Consequently, there is no appearance of a

violation of the applicants' right to a fair hearing by an impartial

tribunal, as guaranteed by Article 6 para. 1 (Art. 6-1).

     Accordingly, this part of the application is manifestly ill-

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

Convention.

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

Convention about the length of their constitutional complaint

proceedings before the Federal Constitutional Court.

a.   As regards the third applicant, the Commission notes that the

criminal proceedings against him opened in 1992.  He was convicted at

first instance on 11 February 1994.  On 28 September 1994 the Federal

Court of Justice dismissed his appeal on points of law.  His

constitutional complaint of 4 November 1994 was rejected by the Federal

Constitutional Court on 23 May 1995, served on 1 June 1995.

     The third applicant's complaint relates to the length of the

Federal Constitutional Court proceedings.  The Commission observes that

the Federal Constitutional Court rendered its decision on the third

applicant's constitutional complaint within a period of less than seven

months.  When the third applicant lodged his constitutional complaint,

the criminal proceedings against him had lasted less than three years.

In these circumstances, the Commission, having regard to the relevant

case-law of the Convention organs (cf. Eur. Court H.R., Ficara judgment

of 19 February 1991, Series A no. 196-A, p. 9, para. 17) finds no

indication that, in the third applicant's case, the proceedings before

the Federal Constitutional Court exceeded a "reasonable time" within

the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

     It follows that the third applicant's complaint about the length

of his proceedings before the Federal Constitutional Court is

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

(Art. 27-2).

b.   The Commission notes that the criminal proceedings against the

first and second applicants were opened in 1990.  They were convicted

at first instance in 1991, their appeals on points of law were

dismissed in June and July 1992, respectively.  They lodged their

constitutional complaints with the Federal Constitutional Court on 18

July and 13 August 1992, respectively, and the Federal Constitutional

Court's decisions were given on 23 May 1995.

     The Commission considers that it cannot, on the basis of the

file, determine the admissibility of these complaints, and that it is

therefore necessary, in accordance with Rule 48 para. 2 (b) of the

Rules of Procedure, to give notice of the first and second applicants'

complaints to the respondent Government.

     For these reasons, the Commission, unanimously,

     DECIDES TO ADJOURN the examination of the first and second

     applicants' complaints about the length of their proceedings

     before the Federal Constitutional Court;

     and, by a majority,

     DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission            President of the Commission

     (H.C. KRÜGER)                         (S. TRECHSEL)