DISSENTING OPINION OF MM. E. BUSUTTIL, G. JÖRUNDSSON, A.S. GÖZÜBÜYÜK, J.-C. SOYER, H. DANELIUS, C.L. ROZAKIS, Mrs. J. LIDDY, MM. L. LOUCAIDES, I. CABRAL BARRETO, A. PERENI_, M. VILA AMIGÓ)

We agree with the majority in finding Article 6 para. 1 of the Convention to be applicable to the proceedings before the Federal Constitutional Court in the present case. The question is therefore whether the proceedings before that Court were terminated within a reasonable time. The time at issue was approximately two years and ten months in regard to the first applicant and about two years and nine months in regard to the second applicant.

The Government have referred to a number of elements which, when taken together, would indicate, in the Government's view, that the time it took the Federal Constitutional Court to decide on the matter was reasonable. We have examined these various elements which include the fact that, following the reunification of Germany, a large number of cases concerning the punishment of espionage were referred to the Federal Constitutional Court, the fact that proceedings before that Court have special features which distinguish them from other court proceedings, and the fact that the Second Division of the Court, before which the applicants' cases were pending, had decided at the relevant time to give priority to some other important and urgent cases.

It appears that the main reason for the delays in the applicants' cases was the burden of work of the Federal Constitutional Court. The Government have provided information about other cases dealt with by the Second Division of the Court at the relevant time. We note that some of the proceedings referred to, which were dealt with during the relevant period, e.g. a dispute regarding subsidies to the national coal-mining industry, had themselves been pending before the Second Division for a considerable time. Other cases processed by the Second Division at that time, in particular the disputes concerning the legislation on abortion, the Maastricht Treaty and the missions of German soldiers in former Yugoslavia, had been given priority in view of their political and social importance.

We accept that it is not for the Commission to substitute for the assessment of the Federal Constitutional Court any other assessment of what might have been the appropriate organisation of its work, given the volume of litigation before it. Nonetheless, when there is a backlog of cases and priority is given to some cases with the result that the examination of other cases is considerably delayed, the State is required to take appropriate measures to avoid that this situation is prolonged and becomes a matter of structural organisation (cf. Eur. Court HR, Zimmermann and Steiner v. Switzerland judgment of 13 July 1983, Series A no. 66, pp. 12-13, para. 29). In this respect, we recall that the Federal Constitutional Court has laboured with a chronic overload of cases since the end of the 1970s and that that overload cannot therefore in itself justify an excessive length of proceedings (cf. Eur. Court HR, Pammel judgment, op. cit., para. 68; Probstmeier judgment, op. cit., para. 64).

The examination of the applicants' cases as well as of a number of other espionage cases was postponed pending the examination of a few test cases regarding the same matter. While such a manner of dealing with cases raising the same or similar legal issues would seem to be reasonable, the examination of the test cases was apparently delayed due to the general work situation of the Federal Constitutional Court. We note, for instance, that, following deliberations in the test cases in November 1994, it took the Court until 23 May 1995 to close the examination of these cases.  This period included a further suspension of the proceedings between December 1994 and March 1995, a delay which was only partly compensated by the fact that a first draft judgment was prepared. In the ensuing proceedings, the decisions refusing to admit the remaining espionage cases were taken shortly afterwards.

Unlike the position in the Süßmann case, the unique political context of German reunification and the serious social implications of disputes relating thereto (cf. Eur. Court HR, Süßmann judgment, loc. cit., p. 1174, para. 60) cannot justify the length of the proceedings in the present case.  In this context, we observe that the questions of punishment for espionage had arisen as a result of the German reunification, whereas some of the cases to which the Federal Constitutional Court gave priority, for instance the cases regarding the Maastricht Treaty and the missions of German soldiers in former Yugoslavia, had no direct connection with the reunification of Germany.

We also attach weight to what was at stake for the applicants, namely their convictions for espionage and their sentences to six years and nine months' and six years' imprisonment respectively.  Irrespective of whether they could have successfully applied to the Federal Constitutional Court for a provisional stay of execution pending the proceedings before the Federal Constitutional Court, we consider that these proceedings were of great importance for their future life and that this element is of special relevance in the assessment of whether the length of the proceedings was reasonable.

In evaluating the length of the proceedings before the Federal Constitutional Court, we have also been mindful of the length of the preceding stages of the proceedings against the applicants, i.e. about one year and ten months in the first applicant's case and about two years and three months in the second applicant's case.  However, in the determination of questions relating to serious criminal charges, an expeditious conduct of the trial cannot justify any substantial delay of the ensuing proceedings before the Federal Constitutional Court.

In the light of all the circumstances of the case, we reach the conclusion that, despite the complexity of the legal issues involved and the special character of proceedings before the Federal Constitutional Court, the length of the applicants' proceedings before the Federal Constitutional Court does not satisfy the reasonable time requirement laid down in Article 6 para. 1 of the Convention.