Gegen die allenthalben auf Kopfschütteln gestoßene Zurückweisung der Klage gegen das Prostituiertenschutzgesetz durch den Richter des Europäischen Gerichtshofs für Menschenrechte, Herrn Potocki, ist nunmehr seitens Rechtanwalt Percy MacLean, der die Kläger/innen in Straßburg vertritt, eine Gegenvorstellung eingereicht worden.
Doña Carmen e.V. veröffentlicht nachfolgend den deutschen und englischen Text der Gegenvorstellung.
European Court of Human Rights
Council of Europe
F-67075 Strasbourg Cedex
Judge Potocki personally Berlin, 6 January 2020
Subject: Complaint No 8557/19 (Case of Schirow and Others v. Germany) filed on 5 February 2019
(regarding the „Act on the Regulation of the Prostitution Trade and the Protection of Persons Engaged in Prostitution“ – ProstSchG – of 21 October 2016, Federal Law Gazette I 2016, p. 2372 et seq.)
Here: Counter submission against the order of 5 December 2019
Honourable Judge Potocki, my dear colleague, by decision of 5 December 2019, my appeal against the ProstSchG was rejected as inadmissible on the grounds that all national remedies had allegedly not been exhausted beforehand in accordance with the requirements of Article 35 §1 of the Convention.
Although I am aware that after a complaint has been rejected, the Court is normally unable to enter into correspondence (if only because of the large number of pending cases), I consider an exception to be necessary in the present case because the grounds for rejection are obviously based on a misconception: The present case does not concern a complaint against an official measure (against which, of course, all national instances would have to be exhausted before recourse to the ECHR), but the complaint directly concerns a law. According to the case-law of the ECHR, the complaint against a law is already admissible, if the legal situation created by existing legal provisions adversely affects the complainant. In the sense of a „potential victim“, this is already the case if the conduct (as in the present case by the obligation to register with sanctions) has to be changed directly on the basis of the statutory provision. In this case, there is no need to wait for an enforcement measure such as an administrative act or a fine (ECHR 29.4.08, 13378/05, marginal 24 – Burden/UK; 22.12.09 – 27996/06, marginal 28 – Sejdic and Finci/Bosnia-Herzegovina).
The German Federal Constitutional Court, which in such a case can be directly appealed to pursuant to § 93.3 of the BVerfGG within one year after the entry into force of the law against which no legal recourse is possible, also issued the challenged decision of 26 December 2005. In the contested order of 26 July 2018 (- 1 BvR 1534/17 -), the Federal Constitutional Court did not complain that the legal remedy had not been exhausted, but (wrongly) complained that the constitutional complaint had allegedly not been substantiated in a manner that satisfied the statutory requirements of §§ 92, 23.1 sentence 2, first half-sentence of the BVerfGG. This erroneous rejection of the constitutional complaint was also presented in the complaint to the European Court of Human Rights as a violation of the principle of a fair trial pursuant to Article 6 § 1 of the European Convention on Human Rights.
Throughout his entire professional life as presiding judge at the Administrative Court in Berlin and as founding director of the German Institute for Human Rights, the undersigned has been committed to the protection of the citizen against encroachments by the state and values the institution of the European Court of Human Rights as pioneering in guaranteeing human rights. Nevertheless, in view of the almost unmanageable number of entries, a rejection by mistake, as in the present case, may occasionally occur, which I ask to be remedied with this (informal) appeal of the counter-argument.
With excellent regard