Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29793/96

by Ursula VOLLERT

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 10 November 1995

by Ursula VOLLERT against Germany and registered on 11 January 1996

under file No. 29793/96;

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 1949, is a German national and resident

in Bonn. In the proceedings before the Commission, she is represented

by Mr. R. Herzog, a lawyer practising in Bonn.

A. Particular circumstances of the case

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

applicant, may be summarised as follows.

In 1993 criminal proceedings were initiated against the applicant

on suspicion of having committed espionage (geheimdienstliche

Agententätigkeit).

The trial against the applicant was held before the Düsseldorf

Court of Appeal (Oberlandesgericht) sitting as a court of first

instance on several days in March 1995. In these proceedings, the

applicant was assisted by defence counsel.

On 30 March 1995 the Court of Appeal convicted the applicant of

espionage on behalf of the former German Democratic Republic, pursuant

to S. 99 para. 1 (1) of the German Penal Code (Strafgesetzbuch). The

applicant was sentenced to two years and three months' imprisonment.

The applicant was also, for a period of three years, deprived of the

rights to hold a public office, to vote and to be elected.

The Court found that in 1975 the applicant, following earlier

contacts with agents of the Ministry for State Security (Ministerium

für Staats-Sicherheit), the secret service of the former German

Democratic Republic, had agreed to work for the Ministry concerned.

She provided the Ministry with general information about her personal

environment at the Bonn University, and later about her professional

environment, in particular during her work for the German Socialist

Party. The Court of Appeal found that the applicant had thereby

committed espionage.

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

considered that she had no criminal record, that she had got involved

in her criminal conduct at a rather young age and that she had admitted

her offences and cooperated in the prosecution of agents of the

Ministry concerned. In view of the aggravating circumstances, in

particular the lengthy period of the applicant's involvement in

espionage, the volume of information provided as well as the breach of

trust towards her superior, the Court of Appeal regarded a prison

sentence of two years and three months as appropriate.

On 22 November 1995 the Federal Court of Justice

(Bundesgerichtshof) dismissed the applicant's appeal on points of law

(Revision). The decision was served on 7 December 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 des Bundesrepublik Deutschland

herbeiführt, wird mit Freiheitsstrafe nicht unter einem

Jahr bestraft.

2. In besonders schweren Fällen ist die Strafe

lebenslange Freiheitsstrafe oder Freiheitsstrafe nicht

under 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 had 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 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 had 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. Further attempts to

introduce such an amnesty in 1990 and 1993, respectively, remained

unsuccessful.

III. Procedure before the Federal Constitutional Court

According to Article 93 para. 1 (4a) of the Basic Law (Grund-

gesetz), the Federal Constitutional Court (Bundesverfassungsgericht)

shall decide on complaints of unconstitutionality, which may be entered

by any person who claims that one of his basic rights or one of his

rights under paragraph 4 of Article 20, under Articles 33, 101, 103,

or 104 has been violated by a public authority.

Article 100 para. 1 of the Basic Law provides inter alia that,

if a court considers unconstitutional a law the validity of which is

relevant to its decision, 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 punished. 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 punishment of espionage by a State following

the accession of another State.

Furthermore, the punishment 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 punished

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 punishment of citizens of the former

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

Democratic Republic and had acted solely within the territory of the

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

extradition or punishment, violated the principle of proportionality.

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

hindernis) regarding this group of persons. Criminal prosecution and

punishment as a means of protecting legal interests should not result

in a disproportionate interference with the rights of the persons

concerned.

In this context, the Constitutional Court considered the

difference between the punishment for espionage and for other criminal

offences. Public international law did not prohibit espionage, but

also allowed the State spied 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 applicant complains under Article 5 of the Convention that

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

unification, there was no legal basis for her conviction and subsequent

detention in respect of espionage on behalf of the former German

Democratic Republic. She considers 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 applicant further complains under Article 14, in conjunction

with Article 5, of the Convention that her conviction of espionage

amounted to discrimination on political grounds. She submits 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.

THE LAW

1. The applicant complains under Article 5 para. 1 (Art. 5-1) of the

Convention that her conviction of espionage, and consequently her

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;

..."

As regards the question of exhaustion of domestic remedies, as

required by Article 26 (Art. 26) of the Convention, the applicant

submits that she did not lodge a constitutional complaint with the

Federal Constitutional Court in the light of the Federal Constitutional

Court's leading decision of 15 May 1995.

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.

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 finds that following the decision of the Federal

Constitutional Court of 15 May 1995, there was no further remedy

available to the applicant under German law whereby she could have

effectively raised the complaint which she now makes before the

Commission (cf. No. 13134/87, Dec. 13.12.90, D.R. 67 p. 214). The

applicant therefore complied with Article 26 (Art. 26).

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. Comm. H.R., No. 9997/82, Dec.

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

In the present case, the Düsseldorf Court of Appeal held that the

applicant's conduct constituted the offence of espionage within the

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

In its decision of 15 May 1995, the Federal Constitutional Court

confirmed that espionage committed by citizens of the Federal Republic

of Germany remained punishable after the German unification.

The Commission considers that the applicant's submissions, in

particular her 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 which could render her detention not "lawful" within the

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

The Commission concludes that the applicant was deprived of her

liberty "in accordance with a procedure prescribed by law" and that she

was lawfully detained "after conviction by a competent court".

It follows that the applicant's 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 applicant further complains under Article 14, in conjunction

with Article 5 (Art. 14+5), of the Convention that her conviction 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).

The Commission considers that the applicant's complaint about

discrimination relates in substance to her detention after conviction

for espionage within the meaning of Article 5 para. 1 (Art. 5-1). Her

complaint therefore falls 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 applicant submits 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.

As regards the applicant's first argument, the Commission notes

that the applicant, a citizen of the Federal Republic of Germany, was

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. 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 applicant, having committed

espionage against the Federal Republic of Germany, was 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 offence committed by

him, 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

applicant when prosecuting her for espionage.

As regards the applicant's 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 Article 5 (Art. 14+5) 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.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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VOLLERT v. GERMANY

VOLLERT v. GERMANY

LEXI