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AS TO THE ADMISSIBILITY OF

Application No. 29526/95

by Siegfried Otto STRESEMANN

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 24 October 1995

by Siegfried Otto STRESEMANN against Germany and registered on

12 December 1995 under file No. 29526/95;

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 applicant, born in 1941, is a German national and resident

in Castrop-Rauxel. He is a technician by profession.

A. Particular circumstances of the case

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

applicant, may be summarised as follows.

On 15 December 1994 the Koblenz Court of Appeal

(Oberlandesgericht) sitting as court of first instance convicted the

applicant of espionage (geheimdienstliche Agententätigkeit) on behalf

of the former German Democratic Republic together with corruption

(Bestechlichkeit), pursuant to the relevant provisions of the German

Penal Code (Strafgesetzbuch). The applicant was sentenced to two years

and six months' imprisonment. The applicant was also, for a period of

five years, deprived of the right to hold a public office, to vote and

to be elected, and the forfeiture of a sum of money amounting to DM

30,000 was ordered. The Court found that the applicant, as employee of

the Federal Office for Military Material (Bundesamt für Wehrtechnik und

Beschaffung), had forwarded secret information on the organisation of

the Office, and documents relating to military material to the secret

service of the former German Democratic Republic. The decision was

served upon the applicant on 5 January 1995.

B. Domestic law and practice

S. 333 of the Code of Criminal Procedure (Strafprozeßordnung)

provides for a right to appeal on points of law (Revision) against,

inter alia, a judgment rendered by a Court of Appeal, sitting as court

of first instance.

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 or 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 as

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

federal law and whether such a rule directly creates rights and duties

for the individual.

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 punished. Furthermore, numerous persons convicted

of such offences lodged constitutional complaints (Verfassungs-

beschwerden) 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, in a leading

decision concerning the request submitted by the Berlin Court of Appeal

and three constitutional complaints, found that there was no rule of

public international law according to which punishment for espionage

and similar offences was excluded if the offences in question had been

committed on instruction and from the territory of a State which had

subsequently acceded to the State spied on. However, the

Constitutional Court, having regard to the principle of

proportionality, found in particular that there was a technical bar to

prosecution of citizens of the former German Democratic Republic who

had committed espionage solely within the territory of the former

German Democratic Republic and that considerations of proportionality

had also to be taken into account when prosecuting and punishing other

citizens of the former German Democratic Republic for espionage.

COMPLAINTS

The applicant complains under Articles 5 and 14 of the Convention

about his conviction and his subsequent detention. He considers that

following the German unification in 1990 there was no legal basis for

punishment in respect of espionage on behalf of the former German

Democratic Republic. He further submits that persons who had been

convicted, by the courts of the former German Democratic Republic, of

espionage on behalf of the Federal Republic of Germany had meanwhile

been rehabilitated. Moreover, he maintains that the punishment of

citizens of the former German Democratic Republic was less severe.

As regards Article 26 of the Convention, the applicant submits

that he did not lodge a constitutional complaint with the Federal

Constitutional Court on the ground that proceedings raising the same

issues were already pending before that Court.

THE LAW

The applicant complains about his conviction by the Koblenz Court

of Appeal of 15 December 1994, and of his subsequent detention.

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 applicant did not appeal on points of

law to the Federal Court of Justice (Bundesgerichtshof) and he did not

lodge a constitutional complaint with the Federal Constitutional Court.

The Commission recalls that under international law, to which

Article 26 (Art. 26) makes express reference, the rule of exhaustion

of domestic remedies demands the use of such remedies as are available

and sufficient and relate to the breaches alleged (see, Eur. Court

H.R., Ciulla judgment of 22 February 1989, Series A no. 148, p. 15,

para. 31; Brozicek judgment of 19 December 1989, Series A no. 167, pp.

16-17, para. 34).

The Commission observes that both an appeal on points of law to

the Federal Court of Justice and a constitutional complaint to the

Federal Constitutional Court, based on the alleged violation of the

right to liberty and the right to equality, as guaranteed by the Basic

Law, would have been effective remedies for the purposes of Article 26

(Art. 26) (see, mutatis mutandis, No. 6271/73, Dec. 13.5.76, D.R. 6 p.

62; No. 6830/74, Dec. 16.5.77, D.R. 9 p. 23; No. 8499/79, Dec. 7.10.80,

D.R. 21 p. 176; No. 11457/86, Dec. 4.5.87, D.R. 52 p. 236).

Consequently, the applicant has not exhausted the remedies available

to him under German law.

The Commission has had regard to the applicant's submission that

he was not required to exhaust these remedies because of other

proceedings pending before the Federal Constitutional Court which

concerned similar matters.

The Commission observes that Article 26 (Art. 26) must be applied

"with some degree of flexibility and without excessive formalism" (cf.

Eur. Court H.R., Guzzardi judgment of 6 November 1980, Series A no. 39,

p. 26, para. 72; Cardot judgment of 19 March 1991, Series A no. 200,

p. 18, para. 34; Castells judgment of 23 April 1992, Series A no. 236,

p. 19, para. 27).

However, the applicant did not argue that there was any case-law

in existence at the relevant time to show that the above remedies

lacked any prospect of success and were, therefore, pointless (cf.,

mutatis mutandis, Eur. Court H.R., B. v. France judgment of 25 March

1992, Series A no. 232-C, pp. 46-47, para. 42; No. 6271/73, loc. cit.;

No. 9586/82, Dec. 14.5.87, D.R. 52 p. 38).

Even assuming that the applicant was excused from exhausting the

remedies available to him under German law, the Commission finds that

the last decision regarding his case was given by the Koblenz Court of

Appeal on 15 December 1994 and served on 5 January 1995, whereas his

application was only submitted on 24 October 1995 which is more than

six months later.

The Commission considers that the applicant, who did not exhaust

all remedies available to him under German law, and in particular a

constitutional complaint to the Federal Constitutional Court, cannot

be excused for delaying his application for more than six months after

the last decision in his case, pending the outcome of such proceedings

in similar cases. Consequently, 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.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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STRESEMANN v. GERMANY

STRESEMANN v. GERMANY

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