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Cite as: [2012] ECHR 1045

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FIFTH SECTION

DECISION

Application no. 31098/08
HIZB UT-TAHRIR and others
against Germany

The European Court of Human Rights (Fifth Section), sitting on 12 June 2012 as a Chamber composed of:

Dean Spielmann, President,
Mark Villiger,
Karel Jungwiert,
Boštjan M. Zupančič,
Ann Power-Forde,
Angelika Nußberger,
André Potocki, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 25 June 2008,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Hizb Ut-Tahrir, is an unincorporated association which did not inform the Court of any registered address. The second applicant, Mr Shaker Hussein Assem, an Austrian national who lives in Germany, is the appointed representative of the first applicant for the purposes of the proceedings before the Court. The third to seventeenth applicants (see list appended) are members or supporters of the first applicant residing in Germany and Romania (applicant no. 5). They were represented before the Court by Mr Tayab Ali of Irvine Thanvi Natas solicitors, a law-firm practising in London.

The German Government (“the Government”) were represented by their agent, Ms Almut Wittling-Vogel, of the Federal Minstry of Justice and by Mr Thomas Giegerich, professor of international law at Kiel University.

Having been informed on 15 June 2010 of their right to submit written observations, the Austrian Government indicated to the Court that they did not intend to take part in the proceedings. The Turkish Government did not express an intention to take part in the proceedings.

A. The circumstances of the case

1. Background to the case

The first applicant, whose name means “Liberation Party”, describes itself as a “global Islamic political party and/or religious society”. It was established in Jerusalem in 1953 and advocates the overthrow of governments throughout the Muslim world and their replacement by an Islamic State in the form of a recreated Caliphate. The first applicant has achieved a small, but highly committed following in a number of Middle Eastern states and has also gained popularity among Muslims in Western Europe. In Germany, where the first applicant has been active since the 1960s, it has approximately two hundred followers.

2. The prohibition issued by the German Ministry of the Interior

On 10 January 2003 the German Federal Ministry of the Interior (Bundesministerium des Innern) issued a decision by which it proscribed the first applicant’s activities within German territory under sections 3 § 1, 14 § 2 no. 4 in conjunction with sections 15 § 1 and 18 § 2 of the Law on Associations (see relevant domestic law, below). It further ordered the first applicant’s assets to be confiscated. Assets of third parties were confiscated as far as they had been intentionally used or were intended to be used to promote the first applicant’s illegal activities.

The Ministry considered that the first applicant was a foreign private association operating on an international scale and that there existed no known sub-organisation in Germany. Its activities in Germany included the distribution of leaflets and brochures and the distribution of information via internet as well as, more recently, the organisation of public events.

The Ministry considered that the first applicant’s activities were directed against the principle of international understanding and that the applicant advocated the use of violence as a means to achieve its political goals. The organisation’s mouthpiece and ideological platform in Germany was the quarterly magazine “Explizit”.

Basing its decision on the book “The inevitability of the battle of cultures”, published in 1953 by the organisation’s founder, Taqiuddin An Nabhani, as well as on a number of publications attributed to the first applicant, in particular articles published in the magazine “Explizit”, leaflets and publications on the organisation’s website, the Ministry considered that the first applicant denied the right of the State of Israel to exist and called for its destruction and for the killing of Jews. This constituted an expression of the applicant’s basic philosophical position, which included the “active Jihad”. The applicant agitated in a targeted fashion against Islamic States and the governments, which overthrow it repeatedly called for. It pursued its objectives, which were directed against the concept of international understanding, in a pro-actively aggressive manner. It did not thereby restrict itself to merely criticising existing political or social conditions or rejecting peaceful coexistence between States and peoples but also called for the armed struggle against the State of Israel, Jews and the Governments of Islamic States.

The Ministry further considered that the first applicant was not a political party, as it did not intend to stand for elections in Germany. It further held that the first applicant was not to be regarded as a religious or philosophical community (Religions- oder Weltanschauungsgesellschaft), as it did not pursue religious, but political objectives.

3. Proceedings before the Federal Administrative Court

On 10 February 2003 the applicants, represented by counsel, lodged an application against the prohibition order with the Federal Administrative Court (Bundesverwaltungsgericht). They alleged, in particular, that the prohibition violated their right to freedom of religion under Article 4 of the Basic Law. They denied that they advocated the use of violence.

On 24 November 2003 the Federal Administrative Court ordered the first applicant to submit evidence as to where the organisation was based. On 7 January 2004 the first applicant pointed out that its organisation was prohibited in all Arab states, they were thus forced to work clandestinely and were unable to reveal the organisation’s address.

On 21 January 2004 the Federal Administrative Court severed the first applicant’s application from the remainder of the proceedings and declared it admissible. That court considered that the first applicant had the legal standing to lodge an application against the prohibition order. Furthermore, it had been properly represented before the court. On the same day, the Federal Administrative Court orally informed the applicants, that, under its established case-law (compare paragraph 34, below) actions lodged by individual members of a prohibited association were to be declared inadmissible. A decision on the admissibility of the remaining applicants’ actions was postponed until 25 February 2004.

On 3 February 2004 the second to seventeenth applicants withdrew their applications with reference to the indication given by the Federal Administrative Court as to the inadmissibility of their applications. On 19 February 2004 the Federal Administrative Court decided to discontinue the proceedings insofar as they concerned the applications lodged by these applicants.

In its submissions dated 8 and 29 November 2004, the first applicant accepted that it was not to be regarded as a political party within the meaning of the relevant law. The first applicant claimed, however, that all its activities had a religious foundation and that it enjoyed the protection of freedom of religion under the Basic Law. It further submitted that the Government had misconstrued the nature of its ideology, stressing, in particular, that the first applicant promoted peaceful dialogue and had never advocated the use of violence. It contested that the magazine “Explizit” was the organisation’s mouthpiece. The first applicant further pointed out that it did not seek to establish a “caliphate” in any of the Western European democracies. Lastly, it complained of a violation of its rights under Articles 9, 10 and 11 of the Convention.

On 8 August 2005 the Federal Administrative Court, by court order without a prior oral hearing, rejected the first applicant’s application as unfounded. Relying on the so-called “organisational law” submitted by the applicants, the court considered that the first applicant did not fulfil the requirements of a religious community, as its activities did not include the exercise of a common religious practice. Furthermore, the first applicant could not be regarded as a philosophical community, as its existence and activities were based on Islam.

The Federal Administrative Court further confirmed that the first applicant’s activities were directed against the principle of international understanding and were thus subject to prohibition under Article 9 § 2 of the German Basic Law in conjunction with the Law on Associations. Examining the sources already relied upon by the Federal Ministry of the Interior, the court considered that numerous statements were attributable to the applicant, which called for the violent elimination of the State of Israel and for the physical destruction of human lives and thus worked contrary to a peaceful resolution of the Middle East conflict.

The Court considered that articles published in the magazine “Explizit” contained denials of Israel’s right to exist and called for the violent elimination of the State of Israel or for people to be killed. The Article “Wie lange noch?” (How long?; Explizit, issue no. 30 March to June 2002, p. 4 et seqq.) addressed the political and military situation in Palestine. The article sharply criticised the Saudi Arabian peace deal adopted at the summit meeting of Arab States in Beirut in March 2002. This was followed by criticism of the Palestinian authority, which was accused of not pursuing the goal of

“freeing Palestine, but of handing over Palestine in the name of the Palestinian people to the Jews.”

This assessment was followed by the statement:

“As Muslims, we must be clear that the problem of “Israel” is not a border issue but an existential issue. The Zionist foreign body at the heart of the Islamic world can under no circumstances be allowed to continue to exist...We repeat again the unalterable Islamic duty: There can only be one response to the Zionist aggression in Palestine: Jihad. Allah, the Exalted, commands: “And slay them wherever ye catch them, and turn them out from where they have turned you out” (Al Baquarah 2, Aya 191).”

This was followed by the opinion that Israel was to be overcome by military means and that the

“Muslim armies (had) never really fought against the Zionist aggressor”.

The court considered that the call to Jihad in the article represented a summons to violently eliminate the State of Israel. It conceded that the term “Jihad” was multilayered in Islamic usage, referring to more than just the “Holy War”. The term described every endeavour, effort and strengthening of Islam. What was decisive in the present context, however, was how the term was to be understood by readers in the context of the article. It was embedded in the statement that Israel could on no account be allowed to continue to exist and the summons to eliminate the State by military means. In this context there could be no doubt that the call to Jihad was aimed at the violent destruction of Israel as a solution to the Israeli-Palestinian conflict. This interpretation corresponded to the quotation from the Qur’an relied upon in the article. It did not have to be decided how this quotation was to be understood in its original context. In the context of the article, it constituted a call to take violent action with the intention of causing physical destruction and banishment.

In the article “Fünfzig Jahre – Happy Birthday Israel?” (Fifty years – Happy birthday Israel?, Explizit, issue no. 5, April to June 1998, p. 2 et seqq.) it was stated that the creation of the State of Israel to the detriment of the Palestinian people was accompanied by crimes against humanity and that Israel thus lacked legitimacy. The article closed with the following statement:

“Whoever accepts the State of Israel is against Allah’s commands and thus commits a serious sin.”

This was followed by a quotation from the Qur’an of a “command by Allah”:

“And fight for Allah against those who fight against you, but do not transgress! Truly, Allah loves those who do not transgress. And slay them wherever ye catch them, and turn them out from where they have turned you out.”

The court considered that it could be left open whether the denial of Israel’s right to exist already breached the concept of international understanding. An any rate, that concept had been interfered with as soon as the assertion was followed by a call violently to eliminate the State of Israel, as had been the case with regard to the quotation from the Qur’an.

The Federal Administrative Court analysed the content of one further article published in the magazine Explizit in 2001 and concluded that that article also contained a call for the destruction of the State of Israel.

According to the court, there were a number of indications, which taken as a whole, left no doubt that there was a close link between the magazine “Explizit” and the first applicant, and that therefore the articles discussed in the above were attributable to the first applicant.

The call to eliminate the State of Israel by force and to kill people was not restricted to the magazine “Explizit”. Among other sources, the court referred to a transcript dated 8 August 2002 of a programme broadcast on Berlin local television about a debate on the Middle East conflict at the Technical University of Berlin, according to which the second applicant said the following with regard to suicide attacks in Israel:

“These actions would be banned in Germany or in other countries in the West – since Islam rejects violence against civilians, but there are no civilians in Israel; all of them, women and men, are part of the military and the founding of the State of Israel was an act of aggression. Everyone who goes to Israel and lives there is complicit in it. An attack on an institution with adults inside is an act of self-defence. If children are also killed, their parents are responsible for having decided to live in Israel.”

The Federal Administrative Court considered that these statements, in which the second applicant justified the physical destruction of Israeli nationals, spoke for themselves. According to the court, the same objective was reflected in a statement made by the second applicant at an event held on 27 October 2002, during which he said:

“For us, Israel is a State of aggression. A State of violence, a State of attack. That is why we are not prepared to accept this State, to make peace with this Zionist entity. This State was built upon the blood of Muslims, through aggression, through violence and we have a duty as Muslims to liberate the land again.”

According to the Federal Administrative Court, the denial of Israel’s right to exist, linked to the call to eliminate the State by force, was also the subject matter of several of the first applicant’s flyers. The court quoted, inter alia, a flyer dated 29 March 2001, which read:

“The whole of Palestine, from the sea to the river, is Islamic territory. Muslims are duty bound to liberate it from the rule of the Jews, even if it costs the lives of millions of martyrs.”

Another flyer dated 28 February 2002 contained the following:

“The Palestinian question is not a question of withdrawing from the region called the Palestinian territories. Nor is it a question of the withdrawal from the West Bank, the Gaza Strip or from Jerusalem. It is the Jewish entity itself which unlawfully appropriated Palestine. The solution is to uproot the Jewish entity from the entire Palestinian territory. Thus speaks Allah: “And slay them wherever ye catch them, and turn them out from where they have turned you out”...(2:191). Every recognition, every negotiation with the Jews is treason against Allah, His Prophet and the believers. We are not allowed to accept this or to keep quiet about it.”

Lastly, the court considered that the prohibition was proportionate. In this connection, it observed that the first applicant did not enjoy special protection under the Constitution as a religious or philosophical community. It further considered that the Federal Government did not have a milder means at their disposition to achieve the pursued aim.

On 3 October 2005 the first applicant submitted its comments on the court order. It alleged, in particular, that the court’s interpretation of the notion “religious community” had been too restrictive and was not consistent with the case law of the Federal Constitutional Court. It further requested an oral hearing to be held.

By judgment of 25 January 2006, which was served on the applicants’ counsel on 6 March 2006, the Federal Administrative Court, following a hearing, rejected the application as unfounded. At the outset, the court confirmed its ruling that the applicant could not be regarded as a religious community, as its aims were primarily of a political nature, even if they were based on religious foundations.

The Federal Administrative Court further considered that, even assuming that the first applicant could be regarded as a religious community or a religious association (religiöser Verein), it remained subject to prohibition under Article 9 § 2 of the Basic Law. The court was satisfied that the conditions for a ban to be issued were fulfilled because a multitude of public statements attributable to the first applicant against the backdrop of the Israeli-Palestinian conflict called for the violent elimination of the State of Israel and for people to be killed.

The Federal Administrative Court considered that the first applicant’s objections against this ruling were not convincing. The evidence presented in the court order was sufficient to justify the assumption that the cited articles were attributable to the first applicant. Irrespective of this fact, the first applicant’s calls for the State of Israel to be eliminated by force and for people to be killed were not only restricted to the magazine “Explizit”.

The court lastly found that, having regard to the seriousness of the statements attributable to the first applicant, the measure taken had to be regarded as proportionate even if the first applicant did enjoy the right to religious freedom. It would, in particular, not have been sufficient exclusively to ban the second applicant’s activity, as the impugned statements were not only made by the second applicant. Neither would it have been sufficient to ban the first applicant from issuing statements on the Middle East conflict, as the first applicant regarded it as a primary duty to combat and violently to destroy the State of Israel. As was demonstrated by the multitude of statements examined by the court in its court order, and had been confirmed by the first applicant during the oral hearing, the first applicant considered it as a main duty of the Caliphate to be created to destroy the State of Israel. These statements had such a weight that even the protection, which religious and philosophical associations generally enjoyed under the Constitution, did not call for renouncing the prohibition for the mere reason that the statements had so far not been followed by actions.

4. Proceedings before the Federal Constitutional Court

On 3 April 2006 the first applicant lodged a constitutional complaint, alleging, in particular, that the prohibition was disproportionate and violated its right freely to assemble as a religious community (religiöse Vereinigungsfreiheit) under Article 4 § 1 of the Basic Law. The first applicant complained, in particular, that Article 9 § 2 of the Basic Law was not applicable in the instant case. Furthermore, the prohibition order failed sufficiently to take into account its interests as a religious community and was disproportionate. According to the first applicant, it would have been sufficient to order the second applicant or other members of the association to refrain from making political statements on the Middle East conflict. The first applicant further alleged that the impugned decisions violated its rights under Articles 9, 10, 11 and 14 of the Convention.

On 27 December 2007 the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the first applicant’s complaint for adjudication. According to that court, the complaint was inadmissible because the first applicant was not qualified to file a complaint as it did not have a registered address in Germany. Pursuant to the relevant provisions of the Law on proceedings before the Federal Constitutional Court, only those persons who could claim a violation of their constitutional rights were entitled to lodge a constitutional complaint. Article 19 § 3 of the Basic Law provided that the basic rights also applied to domestic legal persons to the extent that the nature of such rights permitted. The applicant, however, was a foreign legal person. While it might be considered that a foreign legal person based in another member State of the European Union had a right to equal treatment under Community Law, this did not apply in the first applicant’s case, as it had not been established that the first applicant had a registered office in another EU member State.

This decision was served on the first applicant’s counsel on 18 January 2008.

B. Relevant domestic law

1. Constitutional Law

The relevant provisions of the German Basic Law (Grundgesetz) read as follows:

Article 2

[Personal freedoms]

“(1) Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.”

Article 4

[Freedom of faith and conscience]

“(1) Freedom of faith and of conscience, and freedom to profess a religious or philosophical creed, shall be inviolable.

(2) The undisturbed practice of religion shall be guaranteed.

...”

Article 9

[Freedom of association]

“(1) All Germans shall have the right to form corporations and other associations.

(2) Associations whose aims or activities contravene the criminal laws, or that are directed against the constitutional order or the concept of international understanding, shall be prohibited.

...”

Article 19

[Restriction of basic rights – Legal remedies]

“(1) Insofar as, under this Basic Law, a basic right may be restricted by or pursuant to a law, such law must apply generally and not merely to a single case. In addition, the law must specify the basic right affected and the Article in which it appears.

(2) In no case may the essence of a basic right be affected.

(3) The basic rights shall also apply to domestic legal persons to the extent that the nature of such rights permits.

(4) Should any person’s rights be violated by public authority, he may have recourse to the courts. If no other jurisdiction has been established, recourse shall be to the ordinary courts...”

2. The Law on Associations

The relevant sections of the Law on Associations (Vereinsgesetz) read as follows:

Section 3

Banning

“(1) An association can only be treated as being banned (Article 9 § 2 of the Basic Law) if the competent authority established by decree that its aims or its activity contravene the criminal law or that they are directed against the constitutional order or against the idea of international understanding ; the order shall decree the dissolution of the association (ban). As a general rule, such ban shall entail confiscations and seizure of

1. the association’s assets,

2...and

3. property of third parties provided that the owner, by handling the items over to the association, has deliberately promoted the association’s anti-constitutional activities or if the items were intended to further such activities.

...”

Section 18

Geographical applicability of bans imposed on associations

“...If a (foreign) association does not have a sub-organisation within the geographical applicability of this Act, the ban (section 3 paragraph 1) is directed against its activity within that territory.”

Section 20

“Anyone who, within the geographical applicability of this act, by pursuing an activity

(...)

4. contravenes an enforceable prohibition under section 18 sentence 2 (...) will be sentenced to up to one year’s imprisonment or to a fine.”

Under the established case-law of the Federal Administrative Court (compare judgment of 13 August 1984, no. 1 A 26/83 and decision of 3 April 2003, no. 6 A 5/02), individual members of an association are not entitled to lodge actions against the banning of the respective association, because the ban exclusively affects the legal position of the respective association, and not the individual rights of its members.

COMPLAINTS

The applicants complain under Articles 6, 13 and/or 14 of the Convention about the unfairness of the proceedings before and about the decisions given by the German courts. Relying on Articles 9, 10, 11 and 14 of the Convention, the applicants further complain about the prohibition of the first applicant’s activities.

THE LAW

I. COMPLAINTS LODGED BY THE SECOND TO SEVENTEENTH APPLICANT

Relying on Articles 6, 9, 10, 11, 13 and 14 of the Convention, the applicants nos. 2 – 17 complained about the ban imposed on the first applicant’s activities and about the unfairness of the subsequent court proceedings. They further complained under Article 1 of Protocol No. 1 to the Convention about the confiscation of their assets.

A. Submissions by the Government

According to the Government, the individual applicants had failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. They pointed out that applicant no. 13 was not even named in the written action before the Federal Administrative Court and that there were indications that he appeared under various names, which in itself raised a question under Article 35 § 2 (a) of the Convention.

The applicants nos. 2-12 and 14-17 had failed to exhaust domestic remedies as they had failed to have recourse to the Federal Constitutional Court. Although the constitutional complaint was an extraordinary remedy, the Federal Constitutional Court strictly scrutinised the public acts challenged by any such admissible complaint, using fundamental rights standards similar to those embodied in the Convention.

The individual applicants had not been prevented from availing themselves of this remedy in the instant case. During the oral hearing on 21 January 2004 the Federal Administrative Court indicated to the applicants’ counsel that, under the established case-law of the Federal Administrative Court (see paragraph 34, above), individual members of an association were not entitled to lodge an application against the banning order. The court gave this indication in order to give legal hearing to the applicants and, where appropriate, to afford them the opportunity to save further costs by withdrawing their application. The applicants nos. 2-12 and 14-17 were afforded more than a month to consider, together with their counsel, their reaction to this indication. Firstly, they could have tried to persuade the court to alter its case-law and eventually have lodged a constitutional complaint against any decision of the Federal Administrative Court declaring their application inadmissible. Even though some of the applicants could not rely on Article 9 of the Basic Law, which was reserved to German nationals, they could claim an interference with the general freedom to act enshrined in Article 2 § 1 of the Basic Law. While that Article might offer a somewhat lower standard of protection in comparison with Article 9 of the Basic Law, it certainly made available a review by the Federal Constitutional Court of the need for and suitability of the interference.

The Government further submitted that it would originally also have been possible for the individual applicants to lodge a constitutional complaint directly against the banning order. Instead, the applicants, who were represented by counsel, evidently took the strategic decision to concentrate fully on the first applicant’s proceedings, and hence forfeited the path both to the Federal Constitutional Court and to the Court.

By way of an alternative, the Government submitted that the applicants nos. 2 – 17 had failed to lodge their motion with the Court within the six months’ time-limit following the issue of the banning order of the Federal Ministry of Justice, which constituted the final national ruling for them.

B. Submissions by the applicants

The applicants submitted that applicant no. 13 lodged the application with the Federal Administrative Court under a different name, which was due to the different naming conventions in Arabic and German documents.

The individual applicants further submitted that they withdrew their motion before the Federal Administrative Court following that court’s oral directions to the effect that their claims were inadmissible and in view of the fact that the Federal Administrative Court had declared the first applicant’s motion admissible. They pointed out that their position would have been protected if the German courts had overturned the first applicant’s prohibition, as the first applicant’s interests and those of its individual members were effectively aligned. On appeal before the Federal Constitutional Court, that court de facto reversed the decision of the Federal Administrative Court and ruled the challenge brought by the first applicant inadmissible. Had the Federal Administrative Court taken this stance, the individual applicants would not have withdrawn their complaints, but would have proceeded to have them determined.

Under the Court’s case law, an applicant was not obliged to pursue domestic remedies where there were no reasonable prospects of success. In the instant case, the Federal Administrative Court had directed the applicants nos. 2-17 that continuing their legal challenge would be futile and that they would be at risk of an adverse costs’ order. By pursuing the first applicant’s appeal in isolation, the individual applicants were pursuing the remedy, which the Federal Administrative Court had directed to be their appropriate way of redress. The Government’s submissions were, therefore, entirely inconsistent with the Court’s jurisprudence to the effect that Contracting Parties should be precluded from relying on futile remedies to prevent access to supervisory jurisdiction.

The applicants nos. 2 to 17 had no opportunity to assert their Convention rights before the domestic courts. Since the assertion of the rights of the individual members were nonetheless intimately bound up with the challenge brought by the first applicant, it was appropriate for the individual applicants to await the outcome of the first applicant’s challenge before the constitutional court before making their application to the Court.

The individual applicants further submitted that it appeared from the Government’s submissions that none of the proposed courses of action would have had reasonable prospect of success. Thus, the Government submitted that the applicants should have proceeded with a manifestly inadmissible action before the Federal Administrative Court in order to make a complaint to the Federal Constitutional Court in order to avail themselves of a remedy that afforded them an admittedly inferior level of protection.

The applicants finally submitted that they complied with the six months’ time-limit as the lack of a remedy constituted a continuing violation of their rights.

C. Assessment by the Court

The Court reiterates that the purpose of Article 35 § 1 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it. Thus, the complaint to be submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time limits. Nevertheless, the only remedies that must be exhausted are those that are effective and capable of redressing the alleged violation (see, among many other authorities, Remli v. France, 23 April 1996, § 33, Reports 1996-II, and Paksas v. Lithuania [GC], no. 34932/04, § 45, 6 January 2011).

More specifically, the only remedies which Article 35 § 1 of the Convention requires being exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, for example, Selmouni v. France [GC], no. 25803/94, § 75, ECHR 1999-V). It is incumbent on the Government claiming non exhaustion to convince the Court that the remedy was an effective one available in theory and in practice at the relevant time. However, once this burden of proof has been discharged, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports 1996-IV; Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 156, ECHR 2003-VI and Mooren v. Germany [GC], no. 11364/03, § 118, 9 July 2009).

The Court further recalls its case-law to the effect that a complaint to the Federal Constitutional Court — other than in cases concerning the excessive length of proceedings — is an effective remedy capable of providing redress for a violation of Convention rights (compare Haase v. Germany, no. 11057/02, § 63, ECHR 2004 III (extracts); Mork v. Germany, nos. 31047/04 and 43386/08, §§ 38-39, 9 June 2011; Popovic v. Germany, no. 34236/06, § 41, 13 January 2011 and — with regard to the exception for complaints about the excessive lenght of proceedings — Rumpf v. Germany, no. 46344/06, § 51, 2 September 2010, and the case-law cited therein). This principle is not called into question by the fact that the Federal Constitutional Court might examine a complaint about a violation of the right to freedom of association lodged by the applicants under the more general right of freedom to act enshrined in Article 2 (1) of the Basic Law.

Turning to the circumstances of the instant case, the Court notes that the applicants nos. 2 – 17, who were represented by counsel throughout the domestic proceedings, lodged their applications against the prohibition order with the Federal Administrative Court jointly with the first applicant. On 21 January 2004 the Federal Administrative Court declared the first applicant’s complaint admissible and orally expressed the opinion that it considered the applications lodged by the remaining applicants to be inadmissible. Following this indication, on 3 February 2004 the applicants nos. 2 – 17 withdrew their applications before the Federal Administrative Court. Consequently, the applicants nos. 2 - 17 did not pursue their proceedings before the Federal Administrative Court, and did not lodge a complaint with the Federal Constitutional Court.

The Court does not consider that the individual applicants had been prevented from further pursuing the proceedings before the domestic courts. As regards the argument that the individual applicants had merely followed the instructions given by the Federal Administrative Court, the Court observes, at the outset, that the applicants had been instructed by counsel throughout the proceedings and had been given sufficient time to consider the legal consequences of their procedural actions. The Court further notes that the instructions given by the Federal Administrative Court had not been misleading, but reflected that court’s established case-law and only concerned the proceedings before that court. The applicants did not submit that they had been exposed to any undue pressure to withdraw their complaints; the risk to bear the costs of the proceedings in case the applications were declared inadmissible being inherent in all court proceedings. Furthermore, there is no indication that the applicants would have been prevented from challenging the case-law of the Federal Administrative Court and, eventually, lodging a constitutional complaint against any decision on admissibility.

As to the individual applicants’ argument that they relied on the Federal Administrative Court’s decision to declare the first applicant’s application admissible – a decision which, according to the applicants, had been later on overturned by the Federal Constitutional Court — the Court observes, at the outset, that the Federal Administrative Court’s admissibility decision exclusively concerned the first applicant’s application before that court. It did not contain any prognosis as to the possible outcome of a constitutional complaint which the first applicant might lodge after the termination of the administrative court proceedings. The Court further observes that the Federal Administrative Court fully examined the merits of the first applicant’s challenge against the prohibition order. Conversely, the Federal Constitutional Court did not rule on the admissibility of the original challenge before the Federal Administrative Court, but confined itself to stating that the first applicant could not claim a violation of its constitutional rights before that court. It follows that the Federal Constitutional Court’s ruling cannot be said to have overturned the Federal Administrative Court’s decision on admissibility.

Under these circumstances, the Court considers that the individual applicants have not established that there existed any special circumstances absolving them from the requirement of pursuing their action before the Federal Administrative Court and of lodging a constitutional complaint.

It follows that the complaints lodged by the applicants no. 2-17 must be rejected under Article 35 §§ 1 and 4 of the Convention for non exhaustion of domestic remedies.

II. COMPLAINTS LODGED BY THE FIRST APPLICANT

A. Six months’ time-limit

According to the Government, the first applicant failed to comply with the six-months’ time-limit, which started to run for the first applicant with the judgment of the Federal Administrative Court of 25 January 2006. The constitutional complaint subsequently filed by the first applicant was recognisably not an effective remedy, as it was clearly inadmissible in light of Article 19 § 3 of the Basic Law. Under the Court’s established case law, such a remedy was unable to stay the running of the six-months’ time limit.

The first applicant contested this argument.

The Court recalls that the six months’ time limit imposed by Article 35 § 1 of the Convention requires applicants to lodge their applications within six months of the final decision in the process of exhaustion of domestic remedies. Only remedies which are normal and effective are required to be taken. The test to be applied in evaluating compliance with the six-months’ rule is whether an applicant has attempted to lodge “misconceived applications to bodies or institutions which have no power or competence to offer effective redress” for his or her complaints (see, for example, Fernie v. the United Kingdom (dec.), no. 14881/04, 5 January 2006, and Beiere v. Latvia, no. 30954/05, § 28, 29 November 2011).

Turning to the circumstances of the present case, the Court observes that the Federal Administrative Court, in its court order dated 8 August 2005 and in its judgment dated 25 January 2006, examined the merits of the first applicant’s complaints under Articles 4 and 9 of the Basic Law (see paragraph 32, above), without raising the issue whether the first applicant, having regard to its capacity as a foreign association, might be excluded by Article 19 § 3 from relying on these constitutional rights. Under these circumstances, the Court does not consider that the constitutional complaint, in which the applicant relied on the same constitutional rights previously examined by the Federal Administrative Court, could a priori be regarded as a “misconceived application”. Therefore, in the particular circumstances of the case, the Court considers that the process of the exhaustion of domestic remedies with regard to the applicant’s complaints culminated in the final decision which the Federal Constitutional Court issued on 27 December 2007, which was served on the first applicant’s counsel on 18 January 2008. It follows that the first applicant has to be regarded as having complied with the six-month rule.

B. Alleged violation of Article 11 of the Convention

The first applicant complained that the ban imposed on its activities violated its right to freedom of association, guaranteed by Article 11 of the Convention, which provides:

“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.”

1. Submissions by the Government

The Government considered that the interference with the first applicant’s rights were justified under paragraph 2 of Article 11. The Ban was in accordance with the relevant provisions of the Law on Association in conjunction with Article 9 § 2 of the Basic Law.

According to the Government, the conditions laid down in the domestic law for the banning of the first applicant’s activities were met. The first applicant was seriously opposed to the notion of international understanding, because it quite openly disputed the right of Israel to exist, and hence opposed any peaceful settlement of the Middle East conflict. It further favoured the use of violence as a means to enforce its political and religious aims. This could be documented by means of a large number of documents, which the Federal Administrative Court had listed in detail and evaluated thoroughly.

The prerequisite laid down in the domestic law that an association had to be in opposition to the “notion of international understanding” (Article 9 § 2 of the Basic Law) was sufficiently clearly determined in that it included associations which were opposed to the right of existence and the security of a foreign State and called for its elimination by force. As a reaction to the aggressive policy pursued by the National Socialist regime, the Basic Law imposed an obligation on the German authorities actively to promote peace whenever international security was in danger. This included actions against pro-war propaganda of private associations. No less than denying the Holocaust, such violent propaganda constituted an abuse of rights under the Convention (Article 17 of the Convention). In this context, the Government considered that it also had to be taken into account that the first applicant ultimately wished to abolish the rights and freedoms of the Convention by establishing the worldwide dominance of the Caliphate and Sharia.

The Government further considered that the ban was necessary in a democratic society in the interest of public security, public order and the right and freedoms of others. Public security within the meaning of the Convention, seen in the context of the 4^th recital of the preamble, according to which human rights and fundamental freedoms constitute the basis of world peace, also included international security and world peace. Public order in Germany also included the special relationship with Israel. The Government underlined in this context its special commitment to the security of the State of Israel.

As the Federal Administrative Court had stated in detail, there were no less intrusive means to avert the danger to the security of Israel emanating from the first applicant. The Federal Administrative Court had particularly pointed out that the “liberation of Palestine” from dominance by the State of Israel constituted one of the main concerns of the association and of all of its members. The imposition of a ban relating only to anti Israeli propaganda would not have been as effective as one would certainly have had to anticipate that the first applicant would simply agitate against Israel less openly. This applied all the more given that the first applicant was organised on a conspiratorial basis.

The Government finally submitted that, in accordance with Article 16 of the Convention, interference with the first applicant’s rights under Article 11 of the Convention was at best subject to a restricted review. They pointed out that the first applicant was a foreign association which was headquartered outside Germany and whose activities were also directed from abroad.

2. Submissions by the first applicant

The first applicant contested these arguments. It submitted, in particular, that it did not take any violent actions against Israel, did not accept violence to achieve its religious and political objectives and did not pursue anti-Semitic propaganda. The Explizit magazine was not the mouthpiece of the association and the first applicant could not be held accountable for any views expressed therein. Furthermore, the first applicant did not reject the Convention and did not operate on a “conspiratorial” basis.

According to the applicant, the reasons put forward by the Government could not justify an interference with its rights under Article 11. The protection of “international understanding” was not defined with sufficient legal certainty and did not constitute a ground of justification recognised under paragraph 2 of Article 11. The Government had failed to demonstrate that there was any threat to the public order or security within Germany itself. Even assuming that Contracting Parties could take steps to protect the public security of other States such as Israel, the Government had failed to provide any substantiated evidence that the applicants posed any real threat to the public order or security of Israel or Europe as a whole.

There was no indication that the rights and freedoms of Israelis were violated by the exercise of the applicant’s right of association. On the contrary, the State of Israel allowed prominent members of the first applicant publicly to deliver speeches and openly to take part in demonstrations in the first applicant’s name. Neither did the first applicant’s activities cause any risk or damage to Germany’s international relations. In any event, the measure taken was disproportionate.

According to the applicant, the factual basis relied upon by the Government was incorrect. In particular, while it was true that the first applicant disputed the lawfulness of the formation and activities of the State of Israel, there was no foundation for the suggestion that it necessarily opposed “any peaceful settlement of the Middle East conflict”. The first applicant did not “favour force as a means to enforce its political and religious goals”. On the contrary, the first applicant refused in principle any violent means to achieve its objectives. The first applicant’s “support of those who took actions pursuant to legitimate, proportionate self-defence against violent and unlawful acts in Palestine [was] no different from other groups of individuals defending themselves in a military conflict.” In a statement dated 18 July 2011, which the applicants submitted with their observations in reply to the Government’s submissions, the second applicant explained his statement made at the Technical University in Berlin (see paragraph 21, above) as follows:

“This lecture was given by me and was in response to the Jenin Massacre. It was about the development of Israel since its creation in 1948. Following that lecture, a journalist asked me about suicide missions and immediately asked me about children getting killed in these operations. I answered this question in the way suggested but I didn’t mean that children should be killed as asserted by Germany. The correct answer is that children cannot be targeted in any way and this includes in Israel. The Islamic law states clearly that killing of children in any war zone should be avoided.

In my answer I sought to emphasise that there will be times in the context of conflict that actions which result in the death of civilians may be lawful or, in Islamic terms, “permissible”. Where, as in Palestine, an occupying state acting unlawfully has put civilians and children into an area of conflict there is a risk that harm may come to them. If that happens it will not, necessarily and of itself, make the self-defence unlawful. Deliberately targeting civilians, or acting in a disproportionate manner falls outside the context of legitimate self-defence and would be unlawful and impermissible.

For those reasons, I consider that my views as to what is lawful or permissible, are in essence no different from what may be lawful or permissible in any armed conflict in accordance with established principles of international law: there may, unfortunately, be civilian casualties within any conflict but they may be caused by one side or the other deliberately and improperly bringing civilians into the region of danger. Even then, they should be avoided if at all possible to do so in a way that is consistent with legitimate self-defence.”

Furthermore, the first applicant contested that the Government could rely on Article 16 – which had, under the case-law of the Court, to be construed narrowly – or on Article 17. In this respect, the first applicant submitted, in particular, that it did not search to gain political power or to achieve any political aims inside Germany or in Europe, that it sought to establish a Caliphate that included the establishment of equal rights for citizens including minorities, an independent judiciary and a system of political parties and that it did not advocate the use of violence as a means of achieving its aims.

3. Assessment by the Court

The Court reiterates its case-law on Article 17 of the Convention as summarised in the judgment in the case of Paksas, cited above, §§ 87-88:

“87. The Court reiterates, firstly, that “the purpose of Article 17, in so far as it refers to groups or to individuals, is to make it impossible for them to derive from the Convention a right to engage in any activity or perform any act aimed at destroying any of the rights and freedoms set forth in the Convention; ... therefore, no person may be able to take advantage of the provisions of the Convention to perform acts aimed at destroying the aforesaid rights and freedoms ...” (see Lawless v. Ireland, 1 July 1961, § 7, pp. 45-46, Series A no. 3). Since the general purpose of Article 17 is, in other words, to prevent individuals or groups with totalitarian aims from exploiting in their own interests the principles enunciated in the Convention (see W.P. and Others v. Poland (dec.), no. 42264/98, ECHR 2004-VII, and Norwood v. the United Kingdom, no. 23131/03, ECHR 2004-XI), this Article is applicable only on an exceptional basis and in extreme cases, as indeed is illustrated by the Court’s case law.

88. The Court has held, in particular, that a “remark directed against the Convention’s underlying values” is removed from the protection of Article 10 by Article 17 (see Lehideux and Isorni v. France, 23 September 1998, § 53, Reports 1998-VII, and Garaudy v. France (dec.), no. 65831/01, ECHR 2003-IX). Thus, in Garaudy (ibid.), which concerned, in particular, the conviction for denial of crimes against humanity of the author of a book that systematically denied such crimes perpetrated by the Nazis against the Jewish community, the Court found the applicant’s Article 10 complaint incompatible ratione materiae with the provisions of the Convention. It based that conclusion on the observation that the main content and general tenor of the applicant’s book, and thus its aim, were markedly revisionist and therefore ran counter to the fundamental values of the Convention and of democracy, namely justice and peace, and inferred from that observation that he had attempted to deflect Article 10 from its real purpose by using his right to freedom of expression for ends which were contrary to the text and spirit of the Convention (see also Witzsch v. Germany (dec.), no. 4785/03, 13 December 2005). The Court reached the same conclusion in, for example, Norwood ((dec.), cited above) and Pavel Ivanov v. Russia ((dec.), no. 35222/04, 20 February 2007), which concerned the use of freedom of expression for Islamophobic and anti-Semitic purposes respectively. In Orban and Others v. France (no. 20985/05, § 35, 15 January 2005) it noted that statements pursuing the unequivocal aim of justifying war crimes such as torture or summary executions likewise amounted to deflecting Article 10 from its real purpose. In the same vein, the Court has held that Article 17 of the Convention prevented the founders of an association whose memorandum of association had anti-Semitic connotations from relying on the right to freedom of association under Article 11 of the Convention to challenge its prohibition, noting in particular that the applicants were essentially seeking to employ that Article as a basis under the Convention for a right to engage in activities contrary to the text and spirit of the Convention (see W.P. and Others, cited above).”

Turning to the circumstances of the instant case, the Court observes that the Federal Administrative Court, having carefully analysed a substantial number of written statements published in magazine articles, flyers and transcripts of public statements made by the second applicant, concluded that the first applicant did not only deny the State of Israel’s right to exist, but called for the violent destruction of this State and for the banishment and killing of its inhabitants. The Federal Administrative Court further considered that the propagation of these aims was one of the first applicant’s main concerns. The Court observes that this assessment was not only based on articles published in the magazine “Explizit” – for which the first applicant denies responsibility – but also on a number of articles undisputably published by the first applicant and on two public statements made by the second applicant, who acts as the first applicant’s representative in the instant proceedings. The Court notes, in particular, that the second applicant, in the above mentionned statements, repeatedly justified suicide attacks in which civilians were killed in Israel and that neither the first nor the second applicant distanced themselves from this stance during the proceedings before the Court (compare, in particular, paragraphs 21 and 70, above).

Having regard to the above, the Court considers that the first applicant attempts to deflect Article 11 of the Convention from its real purpose by employing this right for ends which are clearly contrary to the values of the Convention, notably the committment to the peaceful settlement of international conflicts and to the sanctity of human life. Consequently, the Court finds that, by reason of Article 17 of the Convention, the first applicant may not benefit from the protection afforded by Article 11 of the Convention.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

C. Alleged violation of Articles 9 and 10 of the Convention

The first applicant further complained that the prohibition order violated its rights to freedom of religion and to freedom of expression under Articles 9 and 10 of the Convention, which read as follows:

Article 9

“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

Article 10

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The Government submitted that the applicant had failed to exhaust domestic remedies, as it had failed to complain about a violation of its right to freedom of expression before the domestic courts. The applicant contested that argument.

Even assuming exhaustion of domestic remedies with regard to the complaint under Article 10 of the Convention, the Court, having regard to the conclusions reached with regard to the complaint under Article 11 (see paragraph 74, above), considers that these complaints are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

D. Alleged violation of Article 1 of Protocol No. 1 of the Convention

The first applicant complained that the confiscation of its assets violated its right to the peaceful enjoyment of its possessions under Article 1 of Protocol No. 1 of the Convention, which provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Government submitted that the applicant had not raised this complaint before the domestic courts and had thus failed to exhaust domestic remedies. The applicant contested that argument.

The Court notes that the first applicant has not established that it has complained about a violation of its property rights before the domestic courts. In any event, the Court considers that the confiscation of the first applicant’s assets constitutes a secondary effect of the prohibition order. Having regard to its assessment of the first applicant’s complaint under Article 11, the court considers that the applicant’s complaint does not disclose any appearance of a violation of the right set out in Article 1 of Protocol No. 1 to the Convention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

E. Alleged violation of Articles 6 and 14 of the Convention

The first applicant complained about the alleged unfairness and discriminatory nature of the proceedings before the domestic courts, relying on Articles 6 and 14 of the Convention, which read, insofar as relevant:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Government submitted that the prohibition order was a classical measure under police law in the exercise of national sovereignty. The confiscation of assets was to be regarded as an incidental consequence of that order which did not bring the proceedings within the scope of Article 6 of the Convention (the Government referred to the case of Yazar and Others v. Turkey, nos. 22723/93, 22724/93 and 22725/93, §§ 63 et seq., ECHR 2002 II).

The first applicant submitted that the prohibition order was directly decisive of its financial interests. In contrast to the circumstances in the Yazar case, the German authorities were granted a discretionary power under the Associations Act to order the confiscation of the applicant’s asset. Consequently, the Constitutional Court’s decision was directly decisive of the applicants’ private law rights.

The Court observes, at the outset, that Article 17 of the Convention does not bar an applicant from relying on his or her procedural rights under Article 6 of the Convention (compare Lawless v. Ireland (no. 3), 1 July 1961, pp. 45-46, § 7, Series A no. 3). The Court further observes that Article 6 § 1 under its civil limb is only applicable if the proceedings concerned a “dispute” over a “civil right”. The Court reiterates that it has previously found that a dispute over a political party’s right to continue its political activities concerned a political right par excellence and as such did not qualify for protection under Article 6 § 1 of the Convention (see Refah Partisi (the Welfare Party) and Others v. Turkey (dec.), nos. 41340/98, 41342/98, 41343/98 and 41344/98, 3 October 2000 and Yazar and Others, cited above, §§ 66-67). Notwithstanding the fact that the applicant’s political activities are, according to the applicant’s submissions, religiously motivated, the Court considers this principle to be applicable in the instant case. It is true that the prohibition order also contained a confiscation clause and that on that account a dispute could have arisen over a pecuniary right, and hence a civil right within the meaning of Article 6 § 1 of the Convention. However, the first applicant did not establish that it complained about the confiscation of its assets before the domestic courts. Accordingly, the “dispute” in question did not in any way concern the first applicant’s right to the peaceful enjoyment of its possessions. Accordingly, Article 6 of the Convention is not applicable in the instant case.

Having regard to its strictly accessory nature (Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, §§ 33 et seq.), ECHR 2001 VIII) the same applies to Article 14 of the Convention.

It follows that the complaints raised by the first applicant under Articles 6 and 14 are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

F. Alleged violation of Articles 13 and 14 of the Convention

The first applicant complained about having been deprived of an effective remedy against the prohibition order and about having been denied access to such remedy on discriminatory grounds. He relied on Article 13 in conjunction with Article 14 of the Convention, which read as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government contested that argument.

The Court has found above (see §§ 74, above) that the first applicant was precluded by Article 17 of the Convention from relying on its Convention rights with respect to the prohibition order. It follows that the applicant cannot arguably claim a violation of a Convention right in this respect.

For these reasons, the Court by a majority

Declares the application inadmissible.

Claudia Westerdiek Dean Spielmann
Registrar President

Appendix

List of applicants:

1.	HIZB UT-TAHRIR	(an association)
2.	HUSSEIN ASSEM	Shaker	Austrian
3.	BADRAN	Osama	unknown
4.	AL-SHAWI	Nemier	German
5.	QADAN	Ahmad	Israeli
6.	AL-NAFA	Baker	Jordanian
7.	AYOUB	Foad Hamid	Iraqi
8.	OZER	Ahmet	Turkish
9.	NAJI	Mohammed	Yemeni
10.	ASAD	Mahmud	Jordanian
11.	ALABDALLA	Fadi	Jordanian
12.	AQRABAWI	Mohammed	German
13.	MANSUR	Habes Asad	Jordanian
14.	GILIC	Hasan Hüseyin	German
15.	SABANUC	Ali Serkan	German
16.	SHAQURA	Mohammed	Palestinian
17.	ABBAS	Kamal	German