of Application No. 1307/61 by G. W. against the Federal Republic of Germany. The European Commission of Human Rights sitting in private on 4th October 1962, under the presidency of Mr. S. Petren and the following members being present: MM. P. Paber, A. Sustervent, Mrs. G. Janssen-Pevischin, MM. M. S. Jensen, N. Brim, T. Castberg, J. E. Payewer (Rule 25 in fine of the Rules of Procedure), Mr. A. B. McNulty, Secretary to the Commission. 

Having regard to the Application lodged on 12th December 1951 by G. W. against the Federal Republic of Germany and registered on 22nd December 1961 under file No. 1307/61; 

Having regard to the report provided for in Rule 45, paragraph (1), of the Rules of Procedure of the Commission; 

Having deliberated, 

THE FACTS 

Whereas the facts presented by the Applicant may be summarised as follows: The Applicant is a German citizen born in 1898 and living in Bremen. The Applicant has lodged five previous applications, Nos. 350/57, 340/57, 378/58, 486/59, and 1080/61, with the Commission, which were declared inadmissible on 20th March 1958, 30th March 1958, 5th January 1959, 29th August 1959, and 9th March 1962 respectively. Of these applications, only two are of interest in connection with the present application: No. 340/57, which concerned his arrest in 1957 by the Gestapo on the ground that he was suspected of having had homosexual relations with a young man, his subsequent conviction in 1940, and his expulsion from the Bar of Bremen by a Disciplinary Court in 1939; No. 378/58, in which he claimed his reinstatement as a lawyer. 

In his present application, the Applicant brings the following complaints: He states that, when arrested in 1957 and again in 1939 by the Gestapo, he was photographed and his fingerprints were taken. After the war, the sentence imposed upon him in 1940 was set aside; although it was considered to be proved that the Applicant had violated Article 175 of the German Criminal Code, it was probable that at the time of his conviction the time limit for prosecuting him had expired. Relying on this decision, the Applicant requested on 5th July 1955 and 5th March 1957 that the photographs, the fingerprints, and his entire case file be destroyed. He invoked Articles 3, 6, paragraph (2), and 8 of the Convention. At the same time, he asked that a notice in the civil register (Hinwohnermeldeamt) to the effect that he was barred from practising as a lawyer should be deleted. The police and the city authorities of Bremen refused to comply with his requests, whereupon he filed a suit against the city of Bremen before the Administrative Court (Verwaltungsgericht) of Bremen, which, on 15th December 1958, held that it was not competent to deal with the case. The Applicant then appealed to the Superior Administrative Court (Verwaltungsgerichtshof) of Bremen which, on 10th February 1959, held that the administrative courts were competent in the matter; but that the refusal on the part of the city administration to accede to his requests did not violate the German Basic Law or the provisions of the Convention. On 25th October 1960, the Federal Administrative Court (Bundesverwaltungsgericht) confirmed this decision and held that the inclusion of the Applicant's fingerprints and photographs in the criminal register was justified as the Applicant had, in fact, been previously convicted and it was necessary for the protection of society in the case of this particular sort of crime which, according to criminological experience, often led to recidivism. Article 6, paragraph (2) did not apply, as the keeping of records did not indicate that there would not be a presumption of innocence in any future proceedings against a particular person. On the contrary, the records were important for the prevention of crime. The Court further held that the inclusion of photographs of the Applicant in the criminal register did not prejudice him, as they did not form part of the Criminals' Album (Verbrecheralbum). Further, the notice in the civil register as to the prohibition of exercising his profession as a lawyer was considered to be justified. 

On 26th February 1961, the Applicant lodged a constitutional complaint which, on 22nd June 1961, was rejected by the Federal Constitutional Court (a group of three judges of the Second Senate). He was ordered to pay costs of 50 DM. The Applicant also complains against a decision of the Federal Constitutional Court by which it upheld as constitutional the Federal Act on closing hours for shops (Ladenschlussgesetz). It does not appear that he was a party in these proceedings, but he states that he is a shopkeeper. 

Whereas, in respect of his first complaints, the Applicant alleges violations of Articles 3 and 8, in that the authorities of Bremen refuse to destroy the above case file, photographs, and fingerprints. He submits that he was prosecuted by the Gestapo for political reasons, that his sentence was set aside after the war, and that, in any event, homosexuality no longer constitutes a crime since the German ratification of the Convention as Articles 8 and 14 annulled Article 175 of the German Penal Code. He points out that homosexual relations between adults are exempted from punishment in 43 countries. The Applicant further alleges a violation of Article 6 of the Convention, in that he was ordered to pay costs by the Federal Constitutional Court. He contends that this is tantamount to imposing monetary penalties on prospective Applicants to the Commission, as they seek the Court only because they are obliged to do so under Article 26 of the Convention. 

Whereas, in respect of his second complaint, the Applicant submits that the above Act violates Article 8 of the Convention in that consumers are forced to do their shopping at hours which might inconvenience them. It also violates Article 1 of the Protocol, in that shopkeepers are prevented from exercising full ownership of their property. He asks the Commission to declare the Act null and void. 

THE LAW 

Whereas, in regard to the violations of the Convention alleged by the Applicant to have been committed by the authorities of Bremen, it is to be pointed out that the keeping of records, including documents, photographs, and fingerprints, relating to criminal cases of the past is necessary in a modern democratic society for the prevention of crime and is therefore in the interests of public safety; whereas, even if it be accepted that in certain circumstances, Article 8, paragraph (1) might be validly invoked, these considerations justify under paragraph (2) of that Article, refusals in general on the part of the authorities to destroy such case files, photographs, and fingerprints; whereas, moreover, the Applicant has failed to show that the refusals complained of were not in accordance with law and were not dictated by legitimate interests of society and by the necessity to prevent crime and protect the health and morals of others; whereas, in this respect, the Commission refers to its decisions on the admissibility of Applications Nos. 104/55 (B. v. the Federal Republic of Germany - Yearbook I, p. 228) and 261/57 (G. v. the Federal Republic of Germany - Yearbook I, p. 255) in which it held that Article 175 of the German Criminal Code did not violate Articles 8 and 14 of the Convention; whereas, consequently, an examination of the case as it has been submitted, including an examination made ex officio, does not disclose any appearance of a violation of the rights and freedoms set forth in the Convention and in particular in Articles 5 and 8; whereas it follows that this part of the Application is manifestly ill-founded and must be rejected in accordance with Article 27, paragraph (2) of the Convention; 

Whereas the same objection applies to: (a) the Applicant's allegation that Article 6 was infringed by the Federal Constitutional Court, the national courts not being restricted by the Convention in their right to order litigants to pay costs or to impose monetary penalties upon such litigants who unduly burden the Courts with repeated or querulous grievances; whereas the Commission refers in this respect to its decision on the admissibility of Application No. 325/57 (S. v. Denmark - Yearbook I, p. 241) in which it held that the Convention, and in particular, Article 1 of the Protocol did not affect the national practices of imposing monetary penalties or fines; (b) the Applicant's allegation that the Federal Act on Closing Hours for Shops violates Article 8 of the Convention and Article 1 of the Protocol, as such enactment is fully justified under the second paragraphs of these Articles by considerations of the interests of "the economic well-being of the country" (Article 8, paragraph (2)) and of the necessity to control the use of property in accordance with the general interest" (Article 1 of the Protocol, paragraph (2)); 

Whereas it follows that all the allegations made by the Applicant are manifestly ill-founded and must be rejected in accordance with Article 27, paragraph (2) of the Convention; 

Whereas, moreover, the present Application is the sixth Application lodged by the Applicant; whereas in two of these previous applications he has raised the same problem as in the present Application; namely, the consequences of his conviction before the Second World War on charges under Article 175 of the German Criminal Code; whereas all these applications have been declared inadmissible by the Commission; and whereas in its decision on the admissibility of his fifth Application (No. 1060/61), it was held that that Application was abusive "having regard ... to the fact that he has already lodged several other Applications which have been declared inadmissible"; whereas the Commission finds that the present Application is proof of a querulous and abusive exercise of the right of petition given to individuals under Article 25 of the Convention; whereas it follows that this Application must also be rejected as being abusive in accordance with Article 27, paragraph (2) of the Convention; 

Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE. 

Secretary to the Commission President of the Commission (A. B. McNulty) (S. Petren)