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You are here: BAILII >> Databases >> European Court of Human Rights >> X. v. THE FEDERAL REPUBLIC OF GERMANY - 2516/65 [1966] ECHR 4 (23 May 1966)
URL: http://www.bailii.org/eu/cases/ECHR/1966/2516_65.html
Cite as: [1966] ECHR 4
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X. v. THE FEDERAL REPUBLIC OF GERMANY - 2516/65 [1966] ECHR 4 (23 May 1966)
THE FACTS
Whereas the facts presented by the Applicant may be summarised as
follows:
The Applicant, a German citizen, is at present detained in prison at
Bielefeld. From his lengthy statements and the numerous documents
submitted by him, the facts of his case appear as follows:
The Applicant was born in 1915 near Magdeburg and grew up in Germany
until his parents moved to Poland about 1930. Later he served both in
the Polish Army (1937 - 1939) and in the German Navy (1944 - 1945).
After the war the Applicant remained in Germany and, in 1962, he
married Y.
In 1964, the Applicant's wife instituted divorce proceedings and, on
.. April, a hearing of the parties took place before the Regional Court
(Landgericht) of Bielefeld. After the hearing the Applicant left the
Court together with his wife and, on the street, he hit her on the head
and she fell on the pavement. He then stabbed her with a paper knife
and wounded her with some 18 stabs in the head, neck, shoulder, breast,
arm, thigh and foot. By the intervention of other persons he was
prevented from doing further injury.
The Applicant was arrested on the same day and on .. April 1964, a
warrant for his arrest was issued in which it was stated that he was
suspected of attempted murder. In October 1965, the Applicant was
formally charged (angeklagt) with attempted murder and, on .. November
1965, he was sentenced by the Regional Court of Bielefeld to three
years' imprisonment for dangerous assault and battery. His appeal
(Revision) from this judgement was dismissed by the Federal Court
(Bundesgerichtshof) on .. April 1966.
The Applicant's complaints and the corresponding facts appear as
follows:
I. Length of detention pending trial and pending appeal
1. A warrant for the Applicant's arrest (Haftbefehl) was issued by the
District Court (Amtsgericht) of Bielefeld on .. April 1964. It was
stated that the Applicant was strongly suspected of attempted murder
and that there was a danger that he might escape unless remanded into
custody; reasons were given for these findings.
2. On .. 1965, the Applicant's lawyer, Rechtsanwalt Z. applied for the
cancellation of the detention order. He submitted that the Applicant
would probably not be convicted on a charge of attempted murder (Mord)
under Article 211 or attempted manslaughter (Totschlag) under Article
212 of the Criminal Code (Strafgesetzbuch). He further pointed out
that, under Article 223a of the Code the minimum sentence for dangerous
assault and battery was two months' imprisonment.
This application was refused by the Regional Court on .. 1965 and, on
appeal (Beschwerde) by the Court of Appeal (Oberlandesgericht) of Hamm
on .. 1965. The Court of Appeal confirmed the finding of the Regional
Court that the Applicant was strongly suspected of having attacked his
wife with an intention to kill her and stated with reference to Article
120 (new version) of the Code of Criminal Procedure
(Strafprozessordnung) that the length of the Applicant's detention
pending trial (at that time 13 months) was not out of proportion to the
sentence which he might receive if convicted on a charge of attempted
murder or manslaughter.
The Applicant then instructed his lawyer to lodge a further appeal
against the decision of the Court of Appeal. On .. 1965, Mr. Z replied
that no further appeal lay under Article 304, paragraph (4), of the
Code of Criminal Procedure. Nevertheless, the Applicant addressed
several petitions to the Federal Court, which by letters of ... and ...
1965, informed him that it was not competent to deal with these
complaints.
3. In the meanwhile, the Applicant had, without success:
(a) brought criminal charges of "breach of trust in the exercise of his
duties" ("Untreue im Amt") against the investigating judge
(Untersuchungsrichter), Dr. A;
(b) challenged the judges of the Regional Court including the
investigating judge on the ground of partiality and requested the
transfer of his case to another court;
(c) brought criminal charges of defamation against the judges of the
Regional Court and the Court of Appeal.
4. On ... 1965, the investigating judge declared the preliminary
investigation (Voruntersuchung) closed. He stated that the
investigation had been particularly difficult and that it had been
delayed by several petitions of the Applicant which had necessitated
the transmission of the case-file to other authorities.
5. On ... 1965, the Court of Appeal made a new order for the continued
detention of the Applicant. This decision was taken under
Article 121 (new version) of the Code of Criminal Procedure which
states as follows:
"(1) As long as no sentence imposing imprisonment or some preventive
and rehabilitation measure involving a deprivation of liberty has been
passed, a period of remand in custody for the same offence may exceed
six months only in cases where the special difficulty or extent of the
investigations or some other important reason renders the passing of
judgement temporarily impossible and justifies such prolongation.
(2) In the cases mentioned in paragraph (1), the warrant of arrest
shall be withdrawn at the expiry of six months unless its execution is
suspended under Article 116 or the Court of Appeal orders the
continuance of the remand in custody.
..."
-----------------------------------------------------------------------
("(1) Solange kein Urteil ergangen ist, das auf Freiheitsstrafe oder
eine freiheitsentziehende Massregel der Sicherung und Besserung
erkennt, darf der Vollzug der Untersuchungshaft wegen derselben Tat
über sechs Monate hinaus nur aufrechterhalten werden, wenn die
besondere Schwierigkeit oder der besondere Umfang der Ermittlungen oder
ein anderer wichtiger Grund das Urteil noch nicht zulassen und die
Fortdauer der Haft rechtfertigen.
(2) In den Fällen des Absatzes 1 ist der Haftbefehl nach Ablauf der
sechs Monate aufzuheben, wenn nicht der Vollzug des Haftbefehls nach
Paragraph 116 ausgesetzt wird oder das Oberlandesgericht die Fortdauer
der Untersuchungshaft anordnet.
...")
-----------------------------------------------------------------------
The Court of Appeal, considering the result of the preliminary
investigation and, in particular, the Applicant's own statements, found
that he was strongly suspected of attempted manslaughter. Having regard
to the sentence which he might receive and pointing out that he had no
fixed address and that his marriage was ruined, the Court further found
that there was a danger that he might escape unless remanded in
custody. With regard to the length of the Applicant's detention (at
that time 16 months), the Court held that it was not out of proportion
to the sentence which he might receive; in this connection, the Court
observed that the minimum sentence for attempted manslaughter was one
year and three months penal servitude, but that there was no reason to
assume that the alleged crime of the Applicant was a particularly light
case. Finally, the Court found that there were certain "important
reasons" within the meaning of the above Article 121, paragraph (1),
of the Code of Criminal Procedure which rendered the passing of
judgment temporarily impossible and justified the prolongation of the
Applicant's detention on remand. These reasons were: the delay caused
by the preparation of an expert opinion on the question of the
Applicant's criminal responsibility and, secondly, the introduction by
the Applicant of several unfounded petitions.
6. the indictment (Anklageschrift) was completed on ... 1965 and, on
... the Applicant was committed for trial.
7. The trial lasted from .. to .. November 1965.
8. In its judgement of .. November 1965, the Regional Court decided
that the period spent by the Applicant in detention pending trial
should be counted as part of his sentence.
9. New orders for the continued detention (pending appeal) of the
Applicant were made by the Regional Court on ... 1965, ... and ...
1966, and by the Court of Appeal on ... 1966.
10. The Federal Court decided on .. April 1966, in respect of the
period which the Applicant had spent in detention during his appeal
proceedings (.. November 1965, until .. April 1966) that the part of
this period which exceeded three months should be counted as part of
his sentence.
With regard to his detention pending trial and pending appeal, the
Applicant now alleges violations of Article 5, paragraph (4), and
Article 13 of the Convention.
II. Conviction and sentence
On .. November 1965, the Regional Court convicted the Applicant on a
charge of dangerous assault and battery. Taking into account his
previous convictions on similar charges, the Court sentenced him to
three years' imprisonment.
The Applicant introduced both an appeal (Revision) and a constitutional
appeal (Verfassungsbeschwerde) from this judgement. His appeal was
dismissed by the Federal Court on .. April 1966, and his constitutional
appeal was declared inadmissible by the Federal Constitutional Court
(Bundesverfassungsgericht) on ... 1966.
With regard to his conviction and sentence by the Regional Court, the
Applicant admits that he attacked and wounded his wife in the way
described above. He states, however, that he was provoked by her and
complains:
1. that the Regional Court failed to summons certain witnesses as to
the character and general behaviour of his wife;
2. that his sentence was excessive;
3. that the judgement is the result of a conspiracy against him which
was motivated by his Polish origin; and
4. that Rechtsanwalt Z, who had been appointed by the Court to defend
him, failed in the exercise of his duties.
The Applicant alleges violations of Article 6, paragraphs (1) and (3),
sub-paragraph (d), and Articles 7 and 14 of the Convention.
III. Divorce proceedings
On ... 1965, the Applicant's wife was granted a divorce by the Regional
Court of Bielefeld. The Applicant's appeal (Berufung) from this
decision is pending before the Court of Appeal. His constitutional
appeal against the judgement of the Regional Court was declared
inadmissible by the Federal Constitutional Court on ... 1966.
The Applicant complains that the judges of the Regional Court refused
to summons certain witnesses on his behalf and that various lawyers who
represented him in the divorce proceedings, failed in the exercise of
their duties.
He alleges violations of Article 6, paragraphs (1) and (3),
sub-paragraph (d), and Article 8 of the Convention.
IV. Criminal charges brought by the Applicant
Various criminal charges were brought by the Applicant against:
1. the judges of the Regional Court and the Court of Appeal who were
concerned with the criminal proceedings against the Applicant (see
Parts I and II above);
2. the judges of the Regional Court in the divorce proceedings (see
Part III above);
3. a judge of the District Court (Amtsgericht) of Bielefeld (who had
refused the Applicant's petition that his wife should be put under
guardianship);
4. the Public Prosecutor who participated in the trial of the
Applicant;
5. another Public Prosecutor (who had refused to deal with a petition
of the Applicant on the ground that it had been drafted in improper
terms);
6. Mr. Z, the lawyer who defended the Applicant at his trial;
7. one of the lawyers who represented the Applicant in his divorce
case;
8. the Applicant's wife;
9. his stepson; and
10. several witnesses who had given evidence in the above proceedings
before the Regional Court.
In all these cases, the Public Prosecutor refused to institute
proceedings and the Applicant's appeals (Beschwerden) to the
Attorney-General (Generalstaatsanwalt) remained unsuccessful.
V. Correspondence (Article 8 of the Convention)
1. On ... 1965, the Regional Court, finding that the Applicant's
correspondence had become too voluminous, decided that he should only
be permitted to write one letter per week. This limitation did not
apply to his correspondence with his lawyer, the Office of the Public
Prosecutor and the Court.
With reference to its above decision, the Regional Court refused to
forward 31 letters of the Applicant which were consequently returned
to him. These letters were addressed to: an uncle of the Applicant in
Poland, the Federal Railways (Bundesbahn), Cardinal Jäger, the Jewish
Religious Community (Jüdische Kultusgemeinde), two lawyers in
Düsseldorf, Countess Rosen, Mr. Mikolajewski of Düsseldorf, and 22
witnesses whom the Applicant wished to call.
2. In respect of three letters written by the Applicant to his uncle
in Poland, the Court found that they contained offensive and defamatory
statements and decided that they should consequently not be forwarded
(decision of the investigating judge dated ... 1965, and decisions of
the Criminal Chamber dated ... 1965, and ... 1966).
3. Two letters which the Applicant addressed to witnesses, who had been
summonsed to give evidence at his trial, were stopped by the Regional
Court on the ground that they might influence these witnesses (decision
of --- 1965).
The Applicant alleges violations of Articles 6, 8 and 10 of the
Convention.
VI. Complaints concerning treatment in prison
1. A petition by the Applicant for his transfer to another remand
prison was refused by the Regional Court on --- 1965.
2. Several petitions by the Applicant, in which he objected to his
cell-mates and requested to be housed with other remand prisoners, were
granted by the prison administration. Two further applications of the
same kind were dismissed by the Regional Court on --- and --- 1965.
3. The Applicant's requests that arrangements should be made for his
son Peter (aged 3 years) to visit him in prison were refused by the
Regional Court on --- and --- and by the District Court on --- 1965.
4. On --- 1965 the Regional Court rejected as ill-founded the
Applicant's complaint that the competent Social Officer (Fürsorger) had
failed in the exercise of his duties.
5. The Applicant's objections against the prison physician and his
request to be treated by another doctor were dismissed by the Regional
Court on --- 1966.
With respect to the above decisions of the District Court and the
Regional Court, the Applicant alleges violations of Articles 3 and 8
of the Convention.
THE LAW
Whereas, with regard to the Applicant's complaints concerning the
length of his detention pending trial, Article 5, paragraph (3)
(Art. 5-3), of the Convention states that everyone arrested or detained
in accordance with paragraph (1), sub-paragraph (c) of that Article
(Art. 5-1-c) "shall be entitled to trial within a reasonable time or
to release pending trial"; and whereas the Applicant was arrested on
.. April 1964, and detained pending trial until .. November, 1965, that
is for a period of over one year and seven months; whereas, according
to the constant jurisprudence of the Commission, the question whether
a period of detention pending trial is "reasonable" or not cannot be
decided in abstracto but must be considered in the light of the
particular circumstances of each case (see Application No. 2077/63,
Yearbook of the European Convention on Human Rights, Volume 7, pages
268, 276 and 278);
Whereas, in the present case, the Commission has taken into account
that the Applicant was arrested and detained on reasonable suspicion
of having committed a crime for which a heavy sentence might be
imposed; that a justifiable delay in the investigation against him was
caused by the preparation of an expert opinion on the question of his
criminal responsibility; and that the introduction by the Applicant of
several unfounded petitions, in particular his challenge of all judges
of the Regional Court including the investigating judge, resulted in
further delay; whereas, therefore, an examination of the case does not
reveal that the detention of the Applicant was unduly prolonged by the
authorities; whereas, consequently, it does not disclose any appearance
of a violation of Article 5, paragraph (3) (Art. 5-3), of the
Convention;
Whereas it follows that this part of the Application is manifestly
ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention;
Whereas, with regard to the Applicant's complaints concerning the
duration of the criminal proceedings against him, Article 6, paragraph
(1) (Art. 6-1), of the Convention provides that, in the determination
of any criminal charge against him, everyone is entitled to a "hearing
within a reasonable time"; whereas the Commission has considered the
question whether the period referred to in Article 6, paragraph (1)
(Art. 6-1), should be calculated from the date of the Applicant's
arrest (.. April 1964) or only from the date on which he was formally
charged ( ... 1965), and, further, whether this period includes both
the Applicant's trial at first instance up to the Regional Court's
judgement of .. November 1965 and his appeal proceedings before the
Federal Court, which lasted until .. April 1966; whereas the Commission
does not consider it necessary to decide this question in the present
case; whereas it finds that, even if the period concerned was
calculated as running from .. April 1964, until .. April 1966, Article
6, paragraph (1) (Art. 6-1), has not been violated in regard to the
time taken up by the criminal proceedings against the Applicant;
Whereas, in this respect, the Commission has again taken into
consideration the grounds set out above in its finding regarding
Article 5, paragraph ( ) (Art. 5); whereas it follows that this part
of the Application is also manifestly ill-founded within the meaning
of Article 27, paragraph (2) (Art. 27-2), of the Convention;
Whereas the Applicant also complains of his conviction and sentence and
of his divorce proceedings; whereas, in so far as these complaints are
directed against his lawyers, it results from Article 19 (Art. 19) of
the Convention that the sole task of the Commission is to ensure the
observance of the engagements undertaken in the Convention by the High
Contracting Parties, being those Members of the Council of Europe which
have signed the Convention and deposited their instruments of
ratification; whereas, moreover, it appears from Article 25, paragraph
(1) (Art. 25-1) of the Convention that the Commission can properly
admit an application from an individual only if that individual claims
to be the victim of a violation of his rights under the Convention by
one of the Parties which have accepted this competence of the
Commission; whereas it results clearly from these Articles that the
Commission has no competence ratione personae to admit applications
directed against private individuals;
Whereas it follows that this part of the Application is incompatible
with the Convention within the meaning of Article 27, paragraph (2)
(Art. 27-2) (see Application No. 1599/62, Yearbook of the European
Convention on Human Rights, Volume 6, pages 348, 356);
Whereas, in so far as the above complaints give rise to the question
whether the Regional Court failed to ensure that, in the criminal
proceedings against the Applicant, his defence was properly carried out
by his lawyer with the consequence that he was not given a fair hearing
within the meaning of Article 6 (Art. 6) of the Convention, 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 this right; whereas it follows that, in this respect, the
Application is manifestly ill-founded within the meaning of Article 27,
paragraph (2) (Art. 27-2), of the Convention;
Whereas, in regard to the Applicant's further complaints concerning his
conviction and sentence and his divorce proceedings, 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 especially in the Articles
invoked by the Applicant; whereas, in respect of the judicial decisions
complained of, the Commission has frequently stated that in accordance
with Article 19 (Art. 19) of the Convention its only task is to ensure
observance of the obligations undertaken by the Parties in the
Convention; whereas, in particular, it is not competent to deal with
an application alleging that errors of law or fact have been committed
by domestic courts, except where the Commission considers that such
errors might have involved a possible violation of any of the rights
and freedoms limitatively listed in the Convention; whereas, in this
respect, the Commission refers to its decisions No. 458/59 (X. v.
Belgium - Yearbook Volume 3, page 233) and 1140/61 (X. v. Austria -
Collection of Decisions of the Commission, Volume 8, page 57); and
whereas there is no appearance of a violation in the proceedings
complained of; whereas it follows that this part of the Application is
also manifestly ill-founded within the meaning of Article 27, paragraph
(2) (Art. 27-2), of the Convention;
Whereas, in regard to the Applicant's complaint that the numerous
criminal charges brought by him both against judges and public
prosecutors and against third persons were not proceeded with by the
Public Prosecutor, it is to be observed that the Convention, under the
terms of Article 1 (Art. 1), guarantees only the rights and freedoms
set forth in Section I of the Convention; and whereas, under Article
25, paragraph (1) (Art. 25-1), only the alleged violation of one of
those rights and freedoms by a Contracting Party can be the subject of
an application presented by a person, non-governmental organisation or
group of individuals; whereas otherwise its examination is outside the
competence of the Commission ratione materiae; whereas neither the
right to have criminal proceedings instituted against judges and public
prosecutors nor the right to have such proceedings brought against
third persons is as such included among the rights and freedoms
guaranteed by the Convention; whereas it follows that this part of the
Application is incompatible with the provisions of the Convention
within the meaning of Article 27, paragraph (2) (Art. 27-2), of the
Convention;
Whereas, it results from part V of the statement of facts that the
Applicant also complains of certain court decisions concerning his
correspondence; whereas, in this respect, the Commission has had regard
to Article 8 (Art. 8) of the Convention which guarantees to everyone
the right to respect for his correspondence; whereas, however,
paragraph (2) of this provision (Art. 8-2) authorises interference by
a public authority with the exercise of this right where such
interference is in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety
or the economic well-being of the country, 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; whereas the Commission
has examined the court decisions mentioned in Part V of the statement
of facts; and whereas it finds that these decisions, which interfered
with the Applicant's freedom of correspondence, were justified under
paragraph (2) of Article 8 (Art. 8-2);
Whereas it follows that this part of the Application is manifestly
ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention;
Whereas, in regard to the Applicant's further complaint that the
Regional Court refused his petition for transfer to another remand
prison, it is to be observed that the right claimed is not as such
included among the rights and freedoms guaranteed by the Convention;
Whereas it follows that this complaint is incompatible with the
provisions of the Convention within the meaning of Article 27,
paragraph (2) (Art. 27-2), of the Convention;
Whereas, in regard to the Applicant's complaints concerning the Prison
Doctor, the Social Officer and the cell-mates of the Applicant, en
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 Article 3 (Art. 3); whereas it follows that this part
of the Application is manifestly ill-founded within the meaning of
Article 27, paragraph (2) (Art. 27-2), of the Convention;
Whereas, finally, the Applicant also complains of several court
decisions refusing his request to arrange for his son Peter, aged 3
years, to visit him in prison; whereas, in this respect, the Commission
has had regard to Article 8 (Art. 8) of the Convention which guarantees
to everyone the right to respect for his family life; whereas, however,
paragraph (2) of this provision (Art. 8-2) authorises interference by
a public authority with the exercise of this right under certain
conditions; whereas, in particular, such interference is permitted
where it is in accordance with the law and is necessary in a democratic
society for the protection of health or morals; and whereas the
Commission has already held in a previous case that the term
"protection of health or morals" covers not only the protection of the
general health or morals of the community as a whole but also the
protection of the health or morals of individual members of the
community; that, further, the term "health or morals" includes the
psychological as well as physical well-being of individuals; and that,
consequently a court, when determining a parent's right of access to
his child, may properly take into account the need to keep the child
free from serious psychic disturbance (Application No. 911/60, Yearbook
Volume 4, pages 198, 216, 218; see also Application No. 1449/62,
Yearbook Volume 6, pages 262, 266); whereas the Commission finds that,
in the circumstances of the present case, the refusal of the German
courts to arrange for the Applicant's son to visit him in prison was
justified under paragraph (2) of Article 8 (Art. 8-2) by the need to
keep this child free from serious psychic disturbance; whereas it
follows that the remainder of the Application is also manifestly
ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention.
Now therefore the Commission declares this Application INADMISSIBLE.