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S. v. THE FEDERAL REPUBLIC OF GERMANY

Doc ref: 11913/86 • ECHR ID: 001-612

Document date: July 18, 1986

Inbound citations: 0
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Cited paragraphs: 0
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Outbound citations: 3

S. v. THE FEDERAL REPUBLIC OF GERMANY

Doc ref: 11913/86 • ECHR ID: 001-612

Document date: July 18, 1986

Cited paragraphs only

The European Commission of Human Rights sitting in private on

18 July 1986 the following members being present:

MM C.A. NØRGAARD, President

F. ERMACORA

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Sir Basil HALL

Mr H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 (art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 24 June 1985 by

C.S. against the Federal Republic of Germany and registered on 3

January 1986 under file No. 11913/86;

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 facts of the case as submitted by the applicant may be summarised

as follows:

The applicant is a German citizen, born in 1953 and residing at Bonn.

He complains of the Federal Government's consent to the deployment of

Pershing II missiles in the Federal Republic of Germany.

His constitutional complaint (Verfassungsbeschwerde) was on

20 February 1985 declared inadmissible by the Federal Constitutional

Court (Bundesverfassungsgericht) on the ground that it was not

substantiated by submissions referring to basic rights

(grundrechtsbezogene Darlegungen) as required by Article 92 of the Act

on the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz).

COMPLAINTS

The applicant invokes the Preamble and Articles 1, 2, 5, 6 and 17

(art. 1, art. 2, art. 5, art. 6, art. 17) of the Convention.

THE LAW

The applicant complains of the Federal Government's consent to the

deployment of Pershing II missiles in the Federal Government of

Germany.

However, the Commission is not required to decide whether this consent

violated any of the provisions of the Convention invoked by the

applicant as, under Article 26 (art. 26), it may only deal with a

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.

As regards exhaustion of domestic remedies, the mere fact that the

applicant has brought a constitutional complaint does not of itself

constitute compliance with this rule. It is also required that he has

observed the form prescribed by German law for such complaints (cf.

mutatis mutandis No. 6878/75, Dec. 6.10.76, D.R. 6 pp. 79, 88).

However, the Federal Constitutional Court declared the applicant's

constitutional appeal inadmissible on the ground that it was not

substantiated by submissions referring to basic rights as required by

Article 92 of the Act on the Federal Constitutional Court. It follows

that the applicant has failed to exhaust this domestic remedy.

The Commission has nevertheless examined whether, according to the

generally recognised rules of international law, the applicant was

absolved from bringing a constitutional complaint, on the ground that

it would have had no chance of success (cf. No. 8544/79, Dec.

15.12.81, D.R. 26 pp. 55, 69). It here notes that the Federal

Constitutional Court, in its decision of 16 December 1983 (BVerfGE 66,

39 = EuGRZ 1984, 39), dismissed 17 constitutional complaints

concerning the deployment of Pershing II missiles and that, in a

judgment of 18 December 1984 (BVerfGE 68, 1 = EuGRZ 1984, 593), it

dismissed an application by the parliamentary group of the Green Party

concerning the same matter.

The Commission has not considered it necessary to decide whether, in

view of the above decisions, the applicant was absolved from bringing

a constitutional complaint as it finds that he has in any case failed

to comply with Article 26 (art. 26) of the Convention, either because

he did not exhaust domestic remedies, in accordance with the generally

recognised rules of international law, or because he did not observe

the six months' rule.

If the applicant was required to bring a constitutional complaint in

order to exhaust domestic remedies he has, as already stated, failed

to do so because his constitutional complaint did not comply with

Article 92 of the Act on the Federal Constitutional Court.

If, on the other hand, the constitutional complaint was not a remedy

to be exhausted in the present case the application is out of time

because the Federal Constitutional Court's decision of

20 February 1985 on the applicant's constitutional complaint cannot

then be taken into consideration for the purpose of calculating the

six months' time limit laid down in Article 26 (art. 26) and the

Federal Government's decision complained of must be considered as the

"final decision" for the purpose of this provision (cf. mutatis

mutandis No. 7379/76, Dec. 10.12.76, D.R. 8 p. 211). It follows from

the Federal Constitutional Court's above decision of 16 December 1983

that the Federal Government's decision complained of in the present

case, i.e. its consent to the deployment of Pershing II missiles, was

given before 16 December 1983. The present application was introduced

more than six months later, namely on 24 June 1985.

The application must therefore be rejected under Article 27 para. 3

(art. 27-3) read in conjunction with Article 26 (art. 26) of the

Convention, either for non-exhaustion of domestic remedies or for

non-observance of the six months' rule.

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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