CONSEIL DE L'EUROPE 
֊ 
COUNCIL OE EUROPE 
\ 
V 
COMMISSION EUROPÉENNE DES DROITS DE L'HOMME 
EUROPEAN COMMISSION OF HUMAN RIGHTS 
DECISION BY ТШ GC№4ISSIUM 
ОН TES ADMISSIBILITY 
of 
/ i p p l l c a t l o n Nr.. 
2 5 0 / 5 7 
l o d g e d by t h e 
C-erman Comjiunist 
P a r t y , 
d i s s o l v e d by D e c i s i o n 
of t h e 
F e d e r a l 
C o n s t i t u t i o n a l 
C o u r t 
on 1 7 t h A u g u s t , 
195^5 
and by Ш . 
Max REIFANÎÎ and VJalter FISCH 
members of 
t h e 
f o r m e r S t e e r i n g 
Committee 
of t h e 
s a i d 
P a r t y 
a g a i n s t 
the 
F e d e r a l R e p u b l i c 
of 
Germany 
The E u r o p e a n CoiTiraission of Human R i g h t s , 
s i t t i n g 
i n 
p r i v a t e 
on 2 0 t h J u l y , 
1957з 
u n d e r t h e P r e s i d e n c y 
of 
Mr. C. H. M. WALDOCK, Lhe f o l l o w i n g members b e i n g 
p r e s e n t 
M. 
C. Th,. EIJSTATHIADES 
M . 
P „ BERG 
M, 
P . FABER 
M. 
L . J . C . BEAUFORT 
M, 
P . M. DOMIlxTEDO 
M = A . SUESTERfEi'NN 
M , 
S о PETREII 
Mime G. JANSSEN-PEVTSCHIK 
M. 
П . SjZÎRENSEN 
Mr. J . 
GR0S3IE 
M. 
P . SKARPHFDINSSON 
M. 
P : 
M O D I N O S , nead of t h e D i r e c t o r a t e 
of Huir.an 
R i g h t s , 
a c t i n g as S e c r e t a r y 
of 
t h e 
С ОБИЛ! s s 1 o n . 
A.35.2^8 
./, 
~.181з/ошАм 
Q 
250/57 
Having regard to the application lodged on 11th 
February, 1957з hy the German Gnnmunist Party, 
dissolved 
by Decision of the Federal C-^nstltutl ^nal G^urt on 17th 
August, 19565 and by ¥Ii. Max Reimann and / a l t e r Fisch, 
members of the farmer Steering Commlbtee of the said 
Party, against the Federal F(epublic of Germany (application 
registered on ll).'th February, 1957^ f i l e N»^, 250/57); 
Having regard to the decision vjhereby the European 
Commission of Hunan Rights, on "Jth March, 1957s ordered 
the aforementioned application to be-communicated to the 
Government of the Federal Republic, which was Invited to 
present to-the Cormnisslon, v;lthin six weeks, i t s written 
observations on the admissibility of the applicatir^n; 
Having regard to the Presidential Order prolonging 
the period of six weeks u n t i l 20th May, 1957s 
Having regard to the mem.orlal by the Governm.ent of 
the Federal Republic, deposited with the Secretariat of 
the Commission on iLth May, 1957; 
Having regard to the p r e s i d e n t i a l Order dated l8th 
May, 19575 i n s t r u c t i n g that the memorial by the Goverrjment 
of the Federal Republic be c^mmjjnicate d to bhe applicants 
and granting the l a t t e r a period of six Xijeeks In lAihich to 
submit t h e i r vjrlttcn ՚~՚հserva Lions : 
Having regard to the counter-memorial addressed by 
the applicants to bhe Secretariat of the Co,amisslon on 
7th July, 1957: 
After 
deliberation, 
V/hereas the applicants have requested the Commission 
to find that the fovernment of the F'ederal Republic of 
Germany, by bringing about the dissolution and prohibition 
of the Gerraan Conraunlst Party, has violated I t s 
obligations 
under the Convention for the Protection of Huiaan Rights 
and Fundamental Freedoms, which came into force for the 
Federal Republic on yvå September, 1953; 
Whereas the Federal Constitutional Court, in i t s 
Decision delivered on 17th August, 195^3 has ruled as 
follows •; 
'■(1) The German Communist Party i s a n t l - c o n s t i t u t i o n a l 
(2) The German Communist Parby shall be dissolved. 
•/" 
250/57 
(3) The creation of organisations to replace the 
German Communist 'Party, or the continuation of 
e x i s t i n g organisations serving the purpose of 
such replacement, i s prohibited. 
(I).) The assets of bhe German Gomm^unlst Party shall 
be confiscated b'y the Federal Republic of Germ.any 
and used in the I n t e r e s t s of the community;" 
Whereas- in support of their application the applicants 
Invoke the provisions of Articles 9s Ю and 11 of the 
Convention for the Protection of Huraan Rights and Fundamental 
Freedoms; 
lifhereas the Government of the Federal Republic of 
Germany claims that the dissolution of Նhe German Comi-,iunlst 
Party by Decision of the Federal Constitutional Court has 
a legal basis, compatible with the Convention, in Article 
21, pararraph 2, of the Basic Lai/ of the Federal Republic, 
worded as f olloxjs : 
''Inerties which, according to their alms and the 
behaviour of theJr miembers, seek bo impair or 
abolish the free and democratic basic order or to 
jeopardise the existence of the Federal Republic 
of Germany, s h a l l be a n t i - c o n s t i t u t i o n a l . 
The 
Federal Constitutional Court shall decide on the 
question of a n t l - c o n s t i t u t i o n a l i t y " ; 
lAJhercas the r i g h t s and freedoms set forth in Articles 
10 and 11 o£ the Convention may, under the terms of the 
second paragraphs of those A r t i c l e s , be subject to such 
limitations as are prescribed by law, under the conditions 
laid do'wn by the Convention, 
Whereas in the present instance t h e r e . i s no need to 
consider the a^pxolicatlon of the second paragraphs of 
Articles 9s 10 and 11, since Article 17 of the Convention 
contains the follo^rlng more general provision՜ 
"Nothing in the Convention may be Interpreted as 
Implying for any State,, group or person any 
right to engage in any a c t i v i t y or perform any 
act aimed at the destruction of any of the rights 
and freedoms set forth herein or at their limi­
t a t i o n to a greater extent than is provided for 
in the Convention"; 
9s 
^ 
250/57 
- h 
ЧЪегбаз this fundamental provision of the Convention 
is designed to safeguard the rights ՝՝ listed therein by 
protecting the free opération of deîn'^^cratic Institutions 
(see Preparatory Work, Official Records of the Consultative 
Assembly, 1949, First Session, Pages 1255, 3237 and 1239՛ 
"It is necessary to prevent totalitarian currents from 
exploiting, in their own interests, the principles enun-
clabed by the Convention; that i s , from Invoking the 
rights of freedom in order to suppress Hujnan Rights."); 
Whereas a similar motive appears to have guided the 
German legislator when drafting Article 21 of the Basic 
Law; 
I'/hereas the question at issue is to deterralne whether 
the application of the last-m.entioned provision to the 
present case is in conformity witn tne said Article 17^ 
and whether, therefore, w-fthin the meaning of that Article, 
the applicants have committed acts or engaged in any 
activity aim.ed at destroying the rights or freedoms set 
forth in the Convention or at securing more comprehensive 
limitations of those rights or freedon.s than are provided 
for In the said Convention; 
'Whereas i t is paten't: 
(1) 
that the "aim of the Communist Party is to establish 
a socialist-communist system by means of a pro­
letarian revolution and the dictatorship of the pro­
l e t a r i a t " (statements of the German Communist Party 
reproduced in the Decision by the Federal Constitu­
tional Court and in 'Entscheidungen des Bundes­
verfassungsgerichts', cf. vol. 5, 1956, page I63); and 
(2) 
that the Gerr^an Gomi.iumst Party continues to vaunt 
these principles (loc. c i t . , pages I9I and 193՜195)տ 
Whereas even if 11 could be proved that the Party's 
present activity is directed toi^rards the seizure of power 
solely through the constitutional means afforded to i t in 
the Basic Law of the Federal Republic of Germany, this 
would in no sense imply thai- the Par-oy had renounced its 
traditional objectives; on the contrary, tne aforesaid 
statements reaffirm the continued adherence of the German 
Gom-munist Party to -chose objectives: 
. / 
^50/57 
k'hereas the pursuit of such ultimate objectives_ on 
the apollcants' own adm.lssion, implies transition through 
the stages advocated by funda^ienbal Communist doctrine, 
the essential stage being dictatorship of the proletariat; 
liereas recourse to a dictatorship for uhe establishment 
of a régime Is incompatible with the Convention, Inasmuch as 
it includes the destruction of лаапу of the rights or freedoms 
enshrined therein 5 
Whereas the organisation and operation of the German 
Gomm,unlst Party, in the circumstances of the case, con­
stitute an activity within the meaning of Article 17; 
h'hereas it is clear from the foregoing that the 
application by the German Com^munlst Party cannot rest 
' 
upon any provision of the Convention, least of all on 
Articles 9s 10 and 11; and 
that the said application should be declared inadmiis­
slble by virtue of Article 27» paragraph 2, of the Convention, 
as being Inconoatlble with the provisions thereof; 
Now therefore the Commission 
DECLARES THE APPLICATIOK INADMISSIBLE. 
Secretc^ry of the Gop^nission 
PresiJ֊.nt of էե- Coariission 
(P. MODINOS ) 
(G.H.Mo ^"-iLDOCK;