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مشاهدة النسخة كاملة : X. against the FEDERAL REPUBLIC OF GERMANY - 2728/66 [1967] ECHR 30 (06 October 1967)



هيثم الفقى
07-16-2009, 01:42 PM
X. against the FEDERAL REPUBLIC OF GERMANY - 2728/66 [1967] ECHR 30 (06 October 1967)
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant is a German citizen, born in 1929 and at present detainedin prison at Saarbrücken. He complains that he was prevented fromvoting in the Land elections of the Saar in June 1965 and in theelections for the German Federal Parliament (Bundestag) in September1965.The Applicant states that, while in prison, he requested his votingpapers from the local authorities of Dillingen (Saar) but, on ..September 1965, these papers were refused by the mayor of Dillingen onthe ground that the police authorities had ex officio registered theApplicant's departure ("von Amts wegen abgemeldet").The Applicant then wrote to the Parliament (Landtag) of the Saarland.This petition was forwarded to the Presiding Electoral Officer(Landeswahlleiter) who replied on .. September 1965 that theauthorities of Dillingen were competent in the Applicant's case.From the documents submitted, it further appears that, on .. October,the Applicant appealed to the Federal Administrative Court(Bundesverwaltungsgericht) but, by a letter of .. October 1965, he wasinformed that this Court was only competent for appeals (Rechtsmittel)from decisions of lower administrative courts.The Applicant also addressed himself without success to the FederalOffice for the Protection of the Constitution (Bundesamt fürVerfassungsschutz).He now complains:1. that he was wrongly prevented from exercising his right to vote in the above elections, and2. that, in the determination of this right, he was not granted a hearing.He alleges violations of Articles 6, 8 and 14 of the Convention andArticle 3 of the Protocol.THE LAWWhereas the Applicant complains, in the first place, that he waswrongly prevented from exercising his right to vote; and whereas,according to the terms of Article 3 of the Protocol (P1-3) to theConvention, "the High Contracting Parties undertake to hold freeelections at reasonable intervals by secret ballot, under conditionswhich will ensure the free expression of the opinion of the people inthe choice of the legislature"; whereas this undertaking of theContracting Parties to hold free elections implies the recognition ofuniversal suffrage; whereas, consequently, the complaint by anindividual under Article 25 (Art. 25) of the Convention that he wasprevented from voting gives rise to an examination by the Commissionof the implementation of this obligation; whereas, however, it doesnot follow that Article 3 (P1-3) accords the right unreservedly toevery single individual to take part in elections; whereas, indeed,it is generally recognised that certain limited groups of individualsmay be disqualified from voting; whereas, however, the Commission hasstill the task of considering whether such disqualifications affect the"free expression of the opinion of the people" within the meaning ofArticle 3 (P1-3); whereas, in this respect, the Commission refers toits decisions on the admissibility of Application No 530/59, Yearbookof the European Convention on Human Rights, Volume 3, pages 184 - 196(190); No 787/60, Collection of Decisions, Volume 7, pages 75 - 80(79); No 1028/61, Yearbook Volume 4, pages 324 - 340 (338); and No1065/61, ibidem pages 260.270 (268);Whereas the present Application raises the question of restrictionswhich in law or in fact are imposed upon the right to vote of a limitedgroup of individuals, namely convicted prisoners serving theirsentence; whereas the Commission finds that such restrictions do notaffect the "free expression of the opinion of the people in the choiceof the legislature" within the meaning of Article 3 of the Protocol(P1-3); whereas, therefore, the fact that the Applicant, a convictedprisoner, was prevented from voting in the Land elections of the Saarand the federal elections in 1965 does not disclose, with regard tothese elections, any appearance of a violation by the Federal Republicof Germany of its obligations under Article 3 (P1-3);Whereas it follows that the Applicant's complaint under Article 3 ofthe Protocol (P1-3) is manifestly ill-founded within the meaning ofArticle 27, paragraph (2) (Art. 27-2), of the Convention.Whereas the Applicant also complains that, in the determination of hisright to vote, he was not granted a hearing; whereas in this respectthe Commission has had regard to Article 6, paragraph (1) (Art. 6-1),of the Convention which provides that, in the determination of hiscivil rights, everyone is entitled to a fair hearing; whereas thequestion arises whether the right to vote is a "civil right" within themeaning of this provision; whereas the Commission does not feel calledupon to decide this question in the present case, considering that, inany event, the Applicant failed to lodge a constitutional appeal(Verfassungsbeschwerde) with the Federal Constitutional Court(Bundesverfassungsgericht) invoking Article 103, paragraph (1), of theBasic Law (Grundgesetz) which states that, in the courts, "everyone isentitled to a hearing in accordance with the law"; whereas, therefore,he has not exhausted the domestic remedies available to him underGerman law; and whereas there is no appearance of any specialcircumstances which might have absolved him from exhausting theseremedies; whereas, consequently, the condition as to the exhaustionof domestic remedies laid down in Articles 26 and 27, paragraph (3)(Art. 26, 27-3), of the Convention has not been complied with by theApplicant in respect of the remainder of his Application.Now, therefore, the Commission declares this Application inadmissible.