FIFTH SECTION

DECISION

Application no. 57939/18 ALTERNATIVE FÃœR DEUTSCHLAND (A F D) against Germany

The European Court of Human Rights (Fifth Section), sitting on 11 June 2019 as a Committee composed of:

André Potocki , President, Angelika Nußberger , Mārtiņš Mits , judges, and Milan Blaško , Deputy Section Registrar ,

Having regard to the above application lodged on 7 December 2018,

Having deliberated, decides as follows:

THE FACTS

The applicant, the Alternative für Deutschland, is a German political party. It was represented before the Court by Mr C. Conrad, a lawyer practising in Cologne.

A. The circumstances of the case

1. The facts of the case, as submitted by the applicant party, may be summarised as follows.

1. The applicant

2. The applicant party was founded on 6 February 2013. It has since participated in elections to the European Parliament, the Federal Parliament ( Bundestag ) and parliaments of the Länder . Since the last European elections in 2014, it has been represented in the European Parliament. Since the last federal elections in 2017 it has been represented in the Bundestag. It is also represented in all 16 parliaments of the Länder .

2. The Federal Office for the Protection of the Constitution

3. The Federal Office for the Protection of the Constitution ( Bundesamt für Verfassungsschutz ) is responsible, under the supervision of the Federal Ministry of the Interior, for the surveillance of endeavours hostile to the constitution ( verfassungsfeindliche Bestrebungen ). It fulfils its task by systematically monitoring publicly accessible sources. The Office may also, under further conditions, have recourse to more intrusive intelligence measures, such as the (secret) collection and processing of personal data or the use of undercover agents and confidence contacts, as well as mail and telephone interception. Furthermore, the Federal Office for the Protection of the Constitution informs the public if there is sufficient indication of constitution-hostile endeavours.

3. Public statements concerning surveillance of the applicant

4. In March 2018 a conference of the heads of the authorities for the protection of the constitution, including not only the Federal Office for the Protection of the Constitution but also the different offices of the Länder , issued a statement to the effect that there was currently no indication of constitution-hostile endeavours by the applicant party. Nonetheless, they elaborated, on a pre-suspicion level the authorities were constantly monitoring the applicant party, its activities, statements of members and affiliates and potential collaboration with extremist groups. Subsequently, public pressure to become active vis-à-vis the growing impact of right-wing extremists grew as, in late August 2018, violent outbursts took place, most visible in the city of Chemnitz, directed in particular against migrants and the migration policy of the Federal Government. In October 2018, in a hearing before the Federal Parliament, the Federal Office for the Protection of the Constitution ’ s president stated that it was actively gathering information, in collaboration with the other authorities for the protection of the constitution , in order to enable it to decide by the end of the year whether to put the applicant party, parts of the applicant party or single members of the applicant party under surveillance.

4. Subsequent events

5. On 15 January 2019 the Federal Office for the Protection of the Constitution, in an official press release, announced that the applicant party ’ s youth organisation called “ Junge Alternative” as well as a sub ‑ structure of the applicant party called “ Der Flügel ” were suspected of constitution-hostile endeavours (“ Verdachtsfall ” ). There was sufficient evidence, in particular on an anti-migration and anti-Muslim attitude; their programmes contained positions which clearly violated human dignity, and members of the sub-structure had ties to extremist groups. At the same time, the Office stated in its communiqué that there was no such suspicion for the applicant party as a whole, but that the Office would continue to monitor the applicant party on a pre-suspicion level (“ Prüffall ”) .

6. On 26 February 2019 the Cologne Administrative Court decided in favour of the applicant party; the Office for the Protection of the Constitution was not allowed to consider the applicant publicly as “ Prüffall ”. It held that calling the applicant party a “ Prüffall ” necessitated a statutory basis, for it was capable of impeding the applicant ’ s chances in political competitions. The Act on the Protection of the Constitution, in particular its section 16 § 1 (see below paragraph 11), did not provide for such a basis, since it only allowed for informing activity in case of a suspicion of endeavours hostile to the constitution, not, however, on a pre ‑ suspicion level.

B. Relevant domestic law and practice

1. The Basic Law

7. The relevant provisions of the Basic Law are worded as follows:

Article 21 [Political parties]

“(1) Political parties shall participate in the formation of the political will of the people. They may be freely established. Their internal organisation must conform to democratic principles. They must publicly account for their assets and for the sources and use of their funds.

(2) Parties which, through their aims or the conduct of their members, seek to damage or to overthrow the free democratic constitutional system or to endanger the existence of the Federal Republic of Germany shall be held to be unconstitutional. The Federal Constitutional Court shall determine the question of unconstitutionality. (...)”

Article 93 [Jurisdiction of the Federal Constitutional Court]

“(1) The Federal Constitutional Court shall rule:

1. on the interpretation of this Basic Law in the event of disputes concerning the extent of the rights and obligations of one of the highest federal organs or of other parties who have been vested with own rights by this Basic Law or by the rules of procedure of one of the highest federal organs;

(...)

4. (a) on constitutional complaints, which may be lodged by any person alleging that public authorities have infringed one of his or her basic rights or one of his or her rights guaranteed under paragraph (4) of Article 20 or under Article 33, 38, 101, 103 or 104 has been infringed by public authority;

(...).”

2. The Federal Constitutional Court Act

8. In relation to “constitutional complaints”, the relevant provisions read as follows:

Section 13

“The Federal Constitutional Court shall decide (...)

8. on constitutional complaints (Article 93 § 1 No. 4(a) (...) of the Basic Law) (...).”

Section 90

“1. Any person who claims that one of his basic rights or one of his rights under Articles 20 (4), 33, 38, 101, 103 and 104 of the Basic Law has been violated by public authority may lodge a complaint of unconstitutionality with the Federal Constitutional Court.

2. If legal action against the violation is admissible, the complaint of unconstitutionality may not be lodged until all remedies have been exhausted. However, the Federal Constitutional Court may decide immediately on a complaint of unconstitutionality lodged before all remedies have been exhausted if it is of general relevance or if recourse to other courts first would entail a serious and unavoidable disadvantage for the complainant.”

9. In relation to “disputes between constitutional organs”, the relevant provisions are worded as follows:

Section 13

“The Federal Constitutional Court shall decide (...)

5. on the interpretation of the Basic Law in the event of disputes concerning the extent of the rights and obligations of one of the highest federal organs or of other parties who have been vested with own rights by the Basic Law or by the rules of procedure of one of the highest federal organs (Article 93 § 1 no. 1 of the Basic Law) (...)”

Section 63

“Applicants and respondents may only be: the Federal President, the Bundestag , the Bundesrat , the Federal Government, and such parts of these organs that are vested with own rights pursuant to the Basic Law or the rules of procedure of the Bundestag and Bundesrat .”

3. The Administrative Courts Act

10. The relevant provision of the Administrative Courts Act reads as follows:

Section 40

“(1) Recourse to the administrative courts shall be available in all public-law disputes of a non-constitutional nature insofar as the disputes are not explicitly allocated to another court by a federal statute. Public-law disputes in the field of Land law may also be assigned to another court by a Land statute.”

4. The Act on the Protection of the Constitution

11. The relevant provision, in this form applicable since 21 November 2015, reads as follows:

Section 16

“(1) The Federal Office for the protection of the constitution informs the public of constitution-hostile endeavours or actions pursuant to section 3 § 1, as far as there are sufficiently reliable factual indications for it (...).”

5. The case-law of the Federal Constitutional Court

12. The Federal Constitutional Court, in its decision of 24 May 2005, no. 1 BvR 1072/01, cited by the applicant party, considered that, under specific conditions, informing the public of suspicions of the constitution ‑ hostile endeavours of a publishing company on the basis of section 15(2) of the applicable Land Act on the Protection of the Constitution was compatible with the right to freedom of the press, as protected under Article 5 § 1 (2) of the Basic Law. In this decision, the Federal Constitutional Court moreover considered that, contrary to what the administrative courts had assumed throughout the prior domestic proceedings, those specific conditions were not met in the circumstances of the case.

13. The Federal Constitutional Court has, moreover, consistently held that political parties can rely on basic rights in constitutional complaint proceedings within the meaning of Article 93 § 1 no. 4(a) of the Basic Law, but only on those which they hold regardless of their specific constitutional status under Article 21 of the Basic Law. At the same time, the Federal Constitutional Court frequently considers political parties as organs vested with own constitutional rights in Article 21 of the Basic Law, allowing for access to the proceedings considered as “disputes between constitutional organs” within the meaning of Article 93 § 1 No. 1 of the Basic Law (see, with further references, decision of 17 June 2006, no. 2 BvR 383/03, and Nationaldemokratische Partei Deutschlands (NPD) v. Germany (( dec. ), no. 55977/13, § 18, 4 October 2016).

6. The case-law of the Federal Administrative Court

14. The administrative courts generally consider disputes between individuals and authorities for the protection of the constitution on informing the public of constitution-hostile endeavours as public law disputes within the meaning of section 40 § 1 of the Administrative Courts Act (compare, for example the Federal Administrative Court, judgment of 21 May 2008, no. 6 C 13/07).

15. In its judgment of 26 June 2013, no. 6 C 4/12, cited by the applicant, the Federal Administrative Court held that the Act on the Protection of the Constitution, as it was drafted at the time, did not allow the Ministry of the Interior to inform the public of suspicions of constitution-hostile endeavours of a political organisation which had taken part in community elections and had been represented in the city council, if there were only factual indications as opposed to reliable facts. In this judgment, the Federal Administrative Court, in a more general remark, considered that informing the public of relevant suspicions was materially in conformity with the constitution.

COMPLAINTS

16. The applicant party complained under Articles 10 and 11 of the Convention, as well as Article 14 in conjunction with Articles 10 and 11, that the Federal Office for the protection of the constitution was about to inform the public that the applicant party was suspected of endeavours hostile to the constitution (“ Verdachtsfall ”), which brought about stigmatisation and a “ de facto ban”. It referred to the example of the political party “ Die Republikaner ” which, according to the applicant party, had disappeared because of such stigmatisation, which had proved illegal only afterwards. It moreover complained under Articles 6 and 13 of the Convention that it did not have any effective remedy at national level to protect its rights against the informing of the public.

THE LAW

17. In respect of the complaints under Articles 10 and 11 of the Convention as well as Article 14 in conjunction with Articles 10 and 11, the Court has doubts as to whether the applicant, whose complaint before the Cologne Administrative Court – lodged in respect of the explicit characterisation as “ Prüffall ” in the official press release on 15 January 2019 and thus subsequent to the lodging of this application – was successful (see paragraphs 5-6 above), can still claim to be a victim within the meaning of Article 34 of the Convention. In this context it takes note of the fact that the applicant, before the Cologne Administrative Court apparently only objected to being considered a “ Prüffall ” publicly, that is being subjected to surveillance on a pre-suspicion level, whereas, before the Court, it complained of soon being considered a “ Verdachtsfall ” publicly, that is being subjected to surveillance on a suspicion level. The Court considers that the question whether the Administrative Court ’ s decision affects the applicant party ’ s victim status, in view of the respective content of the complaints before the Administrative Court and before this Court, may be left open, for the application is in any event inadmissible for the following reasons.

18. The applicant party argued that, pursuant to Article 35 § 1 of the Convention, domestic remedies were exhausted, even though it did not have recourse to domestic remedies beforehand at all. It was not obliged to seek a remedy without possessing the necessary knowledge to enable it to challenge the lawfulness of an action (reference to Akpınar and Altun v. Turkey , no. 56760/00, § 42, 27 February 2007); the domestic regulation, however, only awarded to individual persons a right of access to the data processed by the Office for the Protection of the Constitution, not to the applicant as a political party. Moreover, the applicant party was not obliged to seek remedies which obviously did not offer reasonable prospects of success (reference to, inter alia , Dulaş v. Turkey , no. 25801/94, 30 January 2001). The domestic courts had expressed clearly their opinion that the Office for the protection of the constitution was allowed to inform the public in cases of suspicion of constitution-hostile endeavours, as could be understood from the decision of the Federal Constitutional Court of 24 May 2005, no. 1 BvR 1072/01, and the decision of the Federal Administrative Court of 26 June 2013, no. 6 C 4/12. As regards the fact that both courts had decided in favour of the claimants in the proceedings, it had to be taken into account that the Act on the Protection of the Constitution had at the time lacked sufficient legal basis. Subsequently, however, section 16 § 1 of the Act had been redrafted and amended in a manner which was now compliant with each court ’ s exigencies.

19. The Court reiterates its case-law in respect of the exhaustion of domestic remedies as recently summed up in Mendrei v. Hungary ( dec. ), no. 54927/15, §§ 23-26, 19 June 2018, with further references.

20. Turning to the facts of the case before it, the Court notes that the dispute between the applicant and the Office for the Protection of the Constitution would, pursuant to section 40 § 1 of the Administrative Courts Act and the administrative court ’ s case-law (cited above in paragraph 14), fall under the jurisdiction of the administrative courts, since it is of a public ‑ law nature. Whether or not a constitutional complaint to the Federal Constitutional Court, pursuant to Article 93 § 1 no. 4(a) of the Basic Law in conjunction with sections 13 no. 8 and 90 of the Federal Constitutional Court Act would, after the exhaustion of remedies before the administrative courts, be admissible appears, according to the cited case-law, to depend on, inter alia , the specific complaints, in particular whether they will be based on more general basic rights of the Basic Law or on the more specific guarantee of Article 21 of the Basic Law. Finally, the dispute does not appear to be a “dispute between state organs” since, in particular, the Office for the Protection of the Constitution is not such a state organ and the dispute does not concern the relationship of the applicant party to the Federal Ministry of the Interior, the state organ supervising the Office for the Protection of the Constitution.

21. Against this background, it is for the Court to decide whether the applicant party argued convincingly that the administrative remedies provided for by the domestic system were not accessible and effective. In respect of the applicant party ’ s allegation that it was unable to substantiate an (administrative) remedy for lack of knowledge of the relevant facts and no right of access to files, the Court considers that domestic proceedings would, in line with the applicant party ’ s claims before the Court, not concern the permissibility of surveillance measures as such, but would rather concern the informing activity of the Federal Office for the Protection of the Constitution. The Court is not convinced that the applicant party ’ s capacity to claim the illegality of the informing activity would be impaired by its lack of knowledge of the particularities of the applied surveillance measures. The two questions are not connected or interdependent in the way the applicant party claims them to be.

22. In respect of the applicant party ’ s allegation that the case-law of the highest domestic courts would render any remedy useless, the Court notes that the applicant party cited decisions of the Federal Administrative Court and the Federal Constitutional Court in which those courts indeed held that informing the public of suspicions of constitution-hostile endeavours, in one of the two cases regarding an organisation with at least some political activity, was in principle and under certain conditions permissible from the standpoint of the Act on the Protection of the Constitution as well as that of the Basic Law as such. At the same time, however, both courts obviously exercised strict scrutiny in assuming that those conditions were, in the circumstances of the case, not met. By failing to use domestic remedies, the applicant party did not sufficiently allow for the opportunity for this scrutiny to be exercised in its case, as well. Also, the Court notes that the decisions of the Federal Administrative and Federal Constitutional Courts concern differently drafted provisions and periods, where section 16 (1) of the Act on the Protection of the Constitution in the applied form had not yet entered into force. The applicant party has therefore failed to show case-law in respect of the applicable provisions. Finally, the events subsequent to the lodging of the present complaint, in particular the decision of the Cologne Administrative Court of 26 February 2019, are valuable proof of the effectiveness of the foreseen remedies. Against this background, the Court cannot establish that the remedies provided for by the domestic system do not offer sufficient prospect of success.

23. In the light of the above, the Court is not satisfied that there were no accessible and effective remedies or that there were special circumstances dispensing the applicant party from its obligation to pursue those remedies. Accordingly, the complaints under Articles 10 and 11 of the Convention as well as Article 14 in conjunction with Articles 10 and 11 must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

24. As concerns the complaint under Articles 6 and 13 about the absence of domestic remedies, the Court notes that the applicant party has domestic remedies available to it and, moreover, is currently making use of them. This complaint is therefore manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 4 July 2019 .

Milan Blaško André Potocki Deputy Registrar President