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Cite as: [1963] ECHR 2

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X. v. the FEDERAL REPUBLIC OF GERMANY - 1628/62 [1963] ECHR 2 (12 December 1963)

THE FACTS

Whereas the facts presented by the Applicant may be summarised as
follows:

The Applicant is a Lithuanian citizen born in ... . He has been
convicted seven times by various courts in Germany and since 1959 has
been detained in the prison of A., serving a sentence of four years'
imprisonment following a conviction for theft. He was released from
prison on ... 1963.

The Applicant states that while detained in the prison of B in 1953,
he contracted tuberculosis and that the prison doctor refused to give
him adequate medical treatment, that his complaints to the authorities
were either suppressed or unsuccessful and that it was not until after
intervention by the International Red Cross (with whom he communicated
by a letter smuggled out of the prison) that he was transferred to a
hospital, that a subsequent examination confirmed that he was suffering
from tuberculosis. In respect of these statements, the Respondent
Government has, in its observations, given an explanation which the
Commission does not deem necessary to reproduce for the purpose of the
present decision.

The present Application concerns the treatment given to him in the
prison of A., and he alleges violations of the following Articles of
the Convention:

1. Article 3. He states that he still suffers from tuberculosis and has
constant pains in the vertebral column. On 30th May 1961 the prison
doctor cancelled his special food ration and refused to give him proper
medical treatment. As the Applicant, for his part, refused to undertake
strenuous work on the ground that it would impair his health, he was
on 26th September 1961 subjected to disciplinary punishment of solitary
confinement with a ration of dry bread for a period of two weeks. On
the thirteenth day he was given a supplementary ration of a quarter of
a litre of milk and 30 grams of margarine. He states that he contracted
a painful stomach ailment during this period and lost ten kilos in
weight, weighing 72 kilos when he entered prison, but only 61.5 kilos
at the end of his solitary confinement.

He states that, on 19th October 1961, the Public Prosecutor of C
rejected a complaint by the Applicant against this treatment on the
ground of lack of proof, although he had asked for an interview with
a representative of the Prosecutor's Office in order to explain his
complaint in detail, that further complaints to the Minister of
Justice, to the Petitions' Committee of the Parliament of Nord
Rhein/Westphalia and to the Public Prosecutor of D where never
forwarded by the prison administration, and that his request to the
local Public Prosecutor that criminal proceedings should be initiated
against prison officials for inflicting corporal injury and for
suppression of letters was similarly withheld by the Documentation
Officer on 14th November 1961.

In respect of these allegations, the Respondent Government in its
observations of 24th May 1963, submitted with medical evidence that the
Applicant does not suffer from an active tuberculosis. It was stated,
in particular, that during the years 1960 - 63, he was X-rayed at
regular intervals and examined in the observation ward of the prison;
that these examinations revealed only an insignificant, inactive and
healed tuberculosis which did not require treatment;  that, on his
discharge from the observation ward, he was declared fit for light or
moderately heavy work and that it was not considered necessary to
continue the practice of giving him supplementary rations. It was
further submitted that he had never been ordered to do strenuous work
but, nevertheless, on 8th September 1961, he declined to carry out the
light work assigned to him. The prison doctor had declared him fit to
undergo the above sentence (during his detention in solitary
confinement the prisoner receives only bread and water except on the
fourth and the eighth day and every successive third day when he
receives a normal diet);  at the end of the two weeks' confinement the
Applicant's weight was 61.5 kilos as compared to 65 kilos on the day
he entered prison. Finally, it was submitted that the Applicant's
complaints had not been suppressed. His letter of complaint of 28th
September 1961 resulted in the opening of an investigation which was
suspended on 6th October 1961, re-opened on 26th October 1961 but again
suspended on 10th April 1962. Further action taken by the Applicant and
his lawyer did not result in a re-opening of the investigation. The
letter of 14th November 1961 had, according to the recollection of the
documentation officer in question, not been withheld but, in any event,
this letter should have been given to the competent prison official and
not to the documentation officer.

2. Articles 8 and 10. The Applicant states that the following letters
have been suppressed by the prison authorities who have thereby
violated the provisions of these two Articles:

(a) a letter of 8th February 1961 to the Lithuanian legation in London
(the       exiled government of that country having no representation
in Bonn);
(b) a letter of 6th June 1961 to his lawyer;
(c) a letter of 23rd October 1961 to his lawyer;
(d) letters of 20th June, 9th and 11th July 1962 to his lawyer;
(e) a letter of 22nd August 1961 to the Petitions' Committee of the
Parliament      of Nord Rhein-Westphalia;
(f) a letter of 29th January 1962 to the Petitions' Committee;
(g) a letter of 31st October 1961 to the Public Prosecutor of C;
(h) a letter of 8th January 1962 to the Public Prosecutor of D;
(i) a letter of 21st November 1961 to the Federal Minister of Justice;
(j) a letter of 23rd October 1961 to the European Commission of Human
Rights.

He adds that such suppression of correspondence is common in the above
prison and that other prisoners are also prevented from contacting
official persons and organisations in order to expose their grievances
and complaints against the prison administration. The Applicant
disputes the statements made by the Respondent Government and states
that the records are not accurate. In his counter-observations, he
mentions other examples of suppressed letters and adds that on a number
of occasions his requests for authorization to write letters was left
unanswered.

In respect of these allegations the Respondent Government, in its
observations of 24th May 1963, submitted that the prison records, in
which all letters emanating from detainees must be entered, show no
mention of a letter addressed to the Lithuanian legation in London (see
(a) above).

As regards the correspondence with the Applicant's lawyer (see (b) -
(d) above), the records show that in the period from August 1960 until
March 1963 he sent eleven letters without interference;  his letter of
6th June 1961 concerning the discontinuation of his supplementary
rations was replied to by the prison doctor two days later and he did
not complain that his letter was not forwarded, that his letters of
23rd October 1961, 9th and 11th July 1962 all contained statements
reported to be manifestly untrue. On one of these occasions he was
informed that he was authorised to write another letter in place of the
one withheld but he declined to avail himself of this offer. The
holding of these letters was authorised under Article 155 (2) of
official prison regulations. The letter of 20th June 1962 was duly
dispatched.

As regards the letters addressed to the Petitions' Committee of the
Parliament of Nord Rhein-Westphalia (see (e) - (f) above), it was
submitted that on 22nd August 1961 the Applicant requested
authorization to write a letter in order to obtain a transfer to
another prison, inter alia, on the ground that he intended to complain
against the prison doctor. An investigation proved that his complaints
were unfounded but, on 7th September 1961 he received, nevertheless,
the necessary paper and his letter was duly dispatched on the following
day. It was further submitted that there was nothing in the prison
records to show that the Applicant on 29th January 1962 handed in for
dispatch a letter addressed to the above Committee.

As regards the letter addressed to the Public Prosecutor of C (see (g)
above), the records show that on 21st October 1961 he was authorised
to write a letter which was dispatched on 23rd October 1961. They show
no mention of a second letter dated 31st October 1961.

As regards the letter addressed to the Public Prosecutor of D (see (h)
above), the records do not confirm that any such letter was handed in
for dispatch on 8th January 1962.

As regards the letter addressed to the Federal Ministry of Justice (see
(i) above), it was stated that on 17th October 1961 the Applicant
requested permission to write a letter complaining of the "theft" of
his passport (see below);  having been informed that the competent
authority was the District Administrative President of C, he addressed
the letter to this authority and handed it in for dispatch on 23rd
October 1961. After an investigation as to the truth of the assertions
made by the Applicant, which proved unfounded, it was forwarded to the
addressee on 2nd January 1962 with a correction by the prison director.

As regards the letter addressed to the Commission of Human Rights, it
was submitted that the prison regulations then in force stipulated that
correspondence should be written in German unless there were compelling
grounds to the contrary. As the Applicant knew the German language, the
prison director held that no grounds justified the use of English. The
Applicant refused to rewrite his complaints in German. The regulations
were changed as from 1st July 1962 and in the future, applications to
the Commission cannot be withheld under any circumstances.

3. Article 13. The Applicant alleges that the above interferences with
his freedom of correspondence have deprived him of an effective remedy
before the national authorities.

In general, it was submitted by the Government that, since his
committal to prison, the Applicant has continually addressed complaints
to many authorities, generally without interference from the prison
administration. His assertion that he was deprived of an effective
remedy against the national authorities in Germany does not correspond
to the facts.

4. Articles 17, 25, 26 and 60. The Applicant alleges violations
of these Articles in respect of the same facts mentioned above.

5. Article 1 of the First Protocol. When the Applicant was transferred
to prison in 1960 he realised that his Lithuanian passport was missing.

 After several complaints which were left unanswered, he was finally
informed in writing that his passport had been forwarded to the Mayor
of E and, later, informed orally that it had been lost "when going
through official channels". In February 1961 he was refused permission
to contact the Legation in London in order to ask it to raise the
matter with the German Government. He alleges that he has been
intentionally deprived of his passport, particularly because, at his
arrest, doubts were raised as to whether he was a Lithuanian citizen.
He has also been informed that the official document ordering his
transfer to prison indicated his nationality as German.

On four occasions he has been refused permission to send letters on
this matter to the Federal Minister of Justice. On 23rd October 1961
he was, however, as stated above, granted permission to complain to the
District Administrative President of C who was stated by the prison
authorities to be the competent authority. His letter was, however, not
dispatched until 2nd January 1962 and, on 10th January 1962, the
Applicant was informed that the President was not competent and eight
days later his complaint was rejected by the Public Prosecutor of F,
who thereby confirmed his previous decision of 8th June 1961. Other
attempts to obtain prosecutions against responsible authorities were
also unsuccessful.

In respect of these allegations, the Respondent Government, in its
observations of 24th May 1963, submitted that, when the Applicant was
committed to prison in August 1959, his passport was taken away from
him for safe keeping. After he had succeeded in escaping from prison
in 1960, his passport was handed to the police of E in order to
facilitate the search for him. He was in no way prevented from
subsequently addressing complaints to the competent authorities and he
conducted, indeed, a voluminous correspondence on the subject. In a
letter of 28th January 1961, the Chief of Police of E admitted that his
passport, which was invalid, had been lost but that, in accordance with
the new international provisions, X will receive a new passport. The
new passport will be issued to X at the place where he settles after
his release. Should he take up residence in the Federal Republic, every
German Aliens Office is competent to issue a passport.

The inquiries made in the matter as a result of the Applicant's
complaints were discontinued as it was not possible to establish proof
of any criminal act on the part of the authorities.

It was officially acknowledged, on the cover of his personal file, and
in the papers dealing with his admission to prison that he was a
Lithuanian and not a German subject.

In respect of all the above allegations, the Respondent Government
submitted that the Applicant had not availed himself of the remedies
open to him under Articles 23 et seq. of the Introductory Law to the
Law on Constitution of Courts of 27th January 1877 as amended on 21st
January 1960.

Claims made by the Applicant

Whereas the Applicant alleges violations of the Articles mentioned
above and asks for the cessation of inhuman and brutal treatment in the
prison in which he is detained, proper medical treatment, dispatch of
the suppressed letters and restitution of his passport.

THE LAW

Whereas, in respect of the alleged violations of Article 3 (Art. 3) of
the Convention, the Commission has taken note of the medical evidence
submitted by the Respondent Government to the effect that the Applicant
does not suffer from an active tuberculosis and that no special medical
treatment was required; whereas the Commission has also taken note of
the statement made by the prison doctor that the Applicant's health
would in no way be impaired by his serving the disciplinary sentence
imposed upon him resulting from his refusal to carry out the work
assigned to him; whereas, in these circumstances, the Commission finds
that the treatment to which the Applicant was subjected during his
detention in prison and, in particular, the above punishment, do not
in any way constitute inhuman or degrading treatment within the meaning
of Article 3 (Art. 3) of the Convention; whereas, therefore, in regard
to these complaints, an examination of the case is it has been
submitted by the Parties does not disclose any appearance of a
violation of this Article of the Convention; whereas it follows that
this part of the Application is manifestly ill-founded and must be
rejected in accordance with Article 27, paragraph (2) (Art. 27-2) of
the Convention;

Whereas, in respect of the alleged violation of Articles 8 and 10
(Art. 8, 10) of the Convention, the Commission has taken note of the
fact that in general the Applicant appears to have been able to carry
on a regular and, indeed, voluminous correspondence with various
authorities in regard to his complaints against the Prison
administration; whereas it is true that on several occasions the
director of the prison in which the Applicant was detained, withheld,
in pursuance of valid prison regulations, letters written by the
Applicant on the ground that they contained statements and accusations
which, after enquiry, proved devoid of foundation; whereas it appears
that at least on one occasion the Applicant was given the possibility
of rewriting the letter which had been withheld, but refused to do so;

Whereas, in any event, it should be noted that although Article 8
(Art. 8) of the Convention in its first paragraph provides that
everyone has the right to respect for his correspondence, and Article
10 in its first paragraph (Art. 10-1) guarantees to everyone the right
to freedom of expression, paragraph (2) of each of these Articles
(Art. 8-2, 10-2) authorised interference by a public authority with the
exercise of these rights if such interference is in accordance with the
law and is necessary in a democratic society, inter alia, for the
protection of the rights and freedoms of others and the reputation of
others; whereas, in respect of Article 8 (Art. 8), the Commission
refers to its decision on the admissibility of Application Number
793/60 (H. v. Belgium - Yearbook III, page 444);

Whereas, in cases in which the rights guaranteed in Articles 8
(Art. 8) and/or 10 (Art. 10) are at issue, the Commission has the
right, and indeed the duty, to appreciate whether or not interference
by a public authority fulfils the conditions laid down in paragraph (2)
of these Articles (Art. 8-2, 10-2) whereas the Commission has
frequently held (see Application Number 753/60 (E. v. Austria - ibidem
page 312)) that these Articles leave the Contracting Parties a certain
margin of appreciation in determining the limits that may be placed on
the exercise of the rights in question;

Whereas, in the present case, it appears that the letters withheld by
the prison administration contained statements and accusations against
third persons which, after a careful enquiry, proved groundless;

Whereas the action taken by the prison authorities was based upon valid
prison regulations and obviously taken in pursuance of aims recognised
as legitimate under the paragraphs (2) of the Articles mentioned
(Art. 8-2, 10-2); whereas, an examination of the submissions of the
Parties does not show that the interference with the Applicant's right
to freedom of correspondence or of expression was in any way an abuse
of the Respondent Government's right to impose such limitations or had
been carried out in a manner contrary to the Convention;

Whereas, in particular, with respect to the Applicant's correspondence
with the Secretariat of the Commission, the Commission has considered
this question in relation to Article 25 (Art. 25) of the Convention;
whereas it has noted with satisfaction that, independently of the
present Application, the Respondent Government has taken the initiative
of amending the above prison regulations so as to avoid in the future
any interference with applicants' right to address themselves to the
Commission in its official languages; whereas, apart from the
suppression of the letter written on 23rd October 1961 in English, no
further interference with the Applicant's correspondence seems to have
occurred, and he has been able to bring his complaints fully before the
Commission; whereas, on these grounds, and with particular regard to
the fact that on the above date the Applicant was informed that he was
authorised to rewrite his Application in German, in which language the
Secretariat is authorised to deal with correspondence, the Commission
finds that an examination of the case as it has been submitted does not
disclose any appearance of a violation of the provisions of the
Convention; whereas it follows that this part of the Application is
manifestly ill-founded and must be rejected in accordance with Article
27, paragraph (2) (Art. 27-2) of the Convention;

Whereas the same objection applies to the alleged violations of
Articles 13, 17, 26 and 60 (Art. 13, 17, 26, 60) of the Convention;

Whereas, in respect of the alleged violation of Article 1 of the First
Protocol (P1-1), the Commission has taken note of the contents of the
letter of 28th January 1961 from the Chief of Police of E according to
which the Applicant, on his release from prison and application to any
Aliens Office in Germany, will receive a new and valid passport
recognising his Lithuanian origin; whereas, consequently, the
disappearance of his old passport has not in any way been prejudicial
to him or to the recognition of his status as a Lithuanian citizen;
whereas it follows that an examination of the case as it has been
submitted does not disclose any appearance of a violation of the
Convention and, in particular, of Article 1 of the First Protocol
(P1-1); whereas, therefore, this part of the Application is manifestly
ill-founded and must be rejected in accordance with Article 27,
paragraph (2) (Art. 27-2)  of the Convention;

Whereas, in these circumstances, the Commission does not consider it
necessary to examine the question whether or not the Applicant was
obliged to avail himself of the remedies offered to him under German
law;

Now therefore the Commission declares this Application INADMISSIBLE