Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11728/85

by R.H.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 2 March 1987, the following members being present:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

S. TRECHSEL

B. KIERNAN

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

F. MARTINEZ

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 15 July 1985 by

R.H. against the Federal Republic of Germany and registered on

19 August 1985 under file No. 11728/85;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a German citizen born in 1922, is a businessman

resident in Hamburg.

The applicant introduced a previous application before the

Commission in 1974 in which he complained of criminal proceedings

instituted against him for organising an unlicensed lottery. On

13 March 1975 the Commission declared this application (No. 6704/74)

inadmissible.

In 1978 the applicant introduced another application (No.

8426/78) before the Commission. He complained, inter alia, that his

proposed candidature for the election of the Hamburg Land Parliament

(Bürgerschaft) on 4 June 1978 was not admitted and that his challenge

of the election was rejected. This application was declared

inadmissible by the Commission on 9 July 1980.

In 1982 the applicant again intended to stand for the

elections of the Hamburg Land Parliament which were to take place on

6 June and 19 December 1982. In order to obtain the five hundred

signatures of voters required by the relevant legislation in Hamburg

in support of his candidature, the applicant requested the Hamburg

authorities to circulate or display in the Hamburg prisons

publications and the official forms which voters have to sign in

support of a candidature in elections. Apparently this request had

been granted for the elections on 6 June 1982. However, for the

elections taking place on 19 December 1982, the applicant's request

was rejected.

On 8 November 1982 and 15 January 1983 the applicant

challenged the validity of the elections of 19 December 1982 before

the Hamburg Land Parliament on the ground, inter alia, that he was

prevented from collecting, in the Hamburg prisons, the five hundred

signatures in support of his candidature.

On 4 May 1983 the Hamburg Land Parliament rejected the

applicant's challenge. His appeal was dismissed on 30 November 1983

by the Hamburg Constitutional Court (Hamburgisches

Verfassungsgericht).

The applicant's constitutional complaint was dismissed by the

Federal Constitutional Court (Bundesverfassungsgericht) on 15 January

1985, partly as being inadmissible and partly as lacking prospects of

success.

Apparently in 1986 the applicant again requested to have

publications and the official forms for signatures in support of his

candidature for the elections of the Hamburg Land Parliament on

9 November 1986 circulated in the Hamburg prisons. This request was

rejected by the Hamburg authorities. However, upon the applicant's

application for a provisional ruling, on 25 September 1986 the Hamburg

Administrative Court of Appeal (Oberverwaltungsgericht) ordered the

Hamburg authorities to display in each of the Hamburg prisons at a

place accessible to detainees up to two hundred copies of the official

form provided for signatures in support of the applicant's candidature

as well as up to twenty copies of a publication by the applicant.

COMPLAINT

The applicant complains that he was prevented from collecting,

in the Hamburg prisons, the necessary number of signatures required in

support of a candidature and that consequently he could not stand as a

candidate in the elections on 19 December 1982. He invokes Article 3

of Protocol No. 1 to the Convention.

THE LAW

The applicant complains that he was prevented from collecting

the five hundred signatures required in support of his candidature as

the authorities refused to circulate or display his publications and

the official forms in the Hamburg prisons.

It is true that Article 3 of Protocol No. 1 (P1-3) secures the

right to free elections at reasonable intervals by secret ballot, under

conditions which will ensure the free expression of the opinion of the people

in the choice of the legislature. This provision guarantees in principle the

right to vote and the right to stand as a candidate at the election of the

legislative body (see Nos. 6745/74 and 6746/74, Dec. 30.5.75, D.R. 2 p. 110,

116 and Nos. 8348/78 and 8406/78, Dec. 11.10.79, D.R. 18, 187, 196).

In the present case, it may appear doubtful whether the

applicant exhausted the remedies available to him under German law in

accordance with Article 26 (Art. 26) of the Convention, as he did not

apply to the administrative courts for an injunction before or after

having been informed of the decision of the authorities not to grant

his request for circulation or display of publications and forms, and

before the elections actually took place on 19 December 1982.

In this respect, the Commission notes in particular that the

applicant, when his corresponding request concerning the elections on

9 November 1986 was rejected, in fact applied to the Administrative

Court and that he eventually obtained an order in his favour before

the Administrative Court of Appeal. The applicant has not shown

that it was impossible or inappropriate for him to seek a similar

order from the Admnistrative Courts before the election of 19 December

1982. However, the Commission does not find it necessary to make a

finding on this issue as the application is in any event manifestly

ill-founded.

The Commission recalls that the right guaranteed, in

principle, by Article 3 of Protocol No. 1 (P1-3) to vote and to stand for

election to the legislature is neither absolute nor without

limitations. As the Commission has already held, States may impose

certain restrictions on this right, provided that they are not

arbitrary and do not interfere with the free expression of the

people's opinion (Nos. 6745/74 and 6746/74, Dec. 30.5.75, D.R. 2

pp. 110, 116).

As regards the refusal by the Hamburg authorities to grant the

applicant's request, the Commission concedes that although under

German law prisoners do not generally or automatically lose their

right to vote (see S. 45 para. 5 of the Criminal Code -

Strafgesetzbuch) the circulation of publications by political groups

or candidates or their display may indeed adversely affect the order

in penal institutions. Furthermore, the Commission notes that the

applicant does not allege that other candidates or political parties

were allowed to circulate publications in the Hamburg prisons or have

them circulated or displayed there or to collect signatures in the

prisons.

Under these circumstances, the Commission cannot find that the

restrictions imposed on the applicant's candidature were unreasonable

or arbitrary or that they were likely to interfere with the free

expression of the opinion of the people in the choice of the

legislature.

It follows that the application is in any event manifestly

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

Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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R. H. v. THE FEDERAL REPUBLIC OF GERMANY

R. H. v. THE FEDERAL REPUBLIC OF GERMANY

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