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You are here: BAILII >> Databases >> European Court of Human Rights >> X. v. THE FEDERAL REPUBLIC OF GERMANY - 2300/64 [1967] ECHR 9 (10 February 1967)
URL: http://www.bailii.org/eu/cases/ECHR/1967/2300_64.html
Cite as: [1967] ECHR 9
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X. v. THE FEDERAL REPUBLIC OF GERMANY - 2300/64 [1967] ECHR 9 (10 February 1967)
THE FACTS
Whereas the facts of the case as presented by the Applicant may be
summarised as follows:
The Applicant is a German citizen, born in 1923 and at present detained
in prison at Bruchsal.
It appears that on .. November, 1958 he was convicted by the Regional
Court (Landgericht) of Stuttgart on numerous charges of aggravated
theft and attempted aggravated theft and sentenced to 61/2 years' penal
servitude (Zuchthaus) and subsequent preventive detention
(Sicherungsverwahrung).
In his original Application as well as in many subsequent letters, he
complains of various measures taken against him by the prison
authorities during his detention at Bruchsal, and he considers that the
German authorities have committed perversion of justice (Rechtsbeugung)
by constantly rejecting his complaints and appeals regarding the
measures taken against him in prison.
His various complaints may be summarised as follows:
1. Detention in a "silence division" (Schweigeabteilung)
The Applicant states that from .. November, 1958 he had to serve his
sentence in a so-called "silence-division" (Schweigeabteilung) at the
prison of Bruchsal. In such a division, prisoners are not allowed to
talk to their fellow-prisoners or to attend cinema performances or
similar entertainments. When in the prison yard, such prisoners are to
be kept at a distance of at least 10 metres from other prisoners.
The Applicant states that he had to serve his sentence in such a
division for almost 6 years. From .. September, 1964, however, he was
allowed to serve his sentence under a less severe prison regime.
He maintains that detention in a "silence division" has necessarily
fatal effects on any person's physical and mental state. In particular,
this is so when a prisoner is kept in such a division and consequently
forbidden to speak to other persons for a long period and in his own
case such prohibition was enforced for six years. He submits that the
establishment of the divisions concerned is not based on any law, but
is a measure taken by the Bruchsal Prison Director on his own
initiative in order to aggravate the sentences imposed by the courts.
In respect of his detention in a "silence division", the Applicant
brought a criminal charge (Strafanzeige) against the prison
administration. This charge was rejected on .. June, 1964 by the Office
of the Public Prosecutor at the Regional Court (Staatsanwaltschaft bei
dem Landgericht) of Karlsruhe and on .. September, 1964 by the Senior
Public Prosecutor at the Court of Appeal (Generalstaatsanwalt bei dem
Oberlandesgericht) of Karlsruhe. In regard to that decision, he lodged
an application for a judicial decision (Antrag auf gerichtliche
Entscheidung) with the Court of Appeal (Oberlandesgericht) of Karlsruhe
and this application was apparently also unsuccessful.
In August, 1964, he lodged a constitutional appeal
(Verfassungsbeschwerde) but, by letter of .. September, 1964 from the
Federal Constitutional Court (Bundesverfassungsgericht), he was
informed that his appeal did not appear to be admissible since he had
not exhausted all other remedies. It was indicated to him that he
should first have availed himself of the remedies laid down in the
Service and Prison Rules (Dienst- und Vollzugsordnung) and that,
finally, he could have lodged an application for a judicial decision
according to Article 23 of the Introductory Act to the Judicature Act
(Einführungsgesetz zum Gerichtsverfassungsgesetz). The Applicant again
wrote to the Federal Constitutional Court and it appears that his
complaint was registered as a constitutional appeal (as to the fate of
that appeal, see below under "Submissions of the Parties").
It seems that the Applicant also complained to the Ministry of Justice
but he states that the Ministry did not give him any final reply,
thereby, in his opinion, preventing him from exhausting the domestic
remedies.
The Applicant states that as a result of his detention in a "silence
division" he contracted a stomach ulcer and he also points out that
during that detention he was exposed to all sorts of affronts by the
prison officers.
He alleges violations of Articles 2 and 3 of the Convention.
2. Interference with right of correspondence
(a) On .. November, 1958, the Applicant received permission to
correspond regularly (Regelbriefverkehr) with a certain Miss A. W whom
he intended to marry and who was the mother of his two illegitimate
children. He did not wish to correspond with his wife as they were no
longer living together and he apparently intended to obtain a divorce
from her. On one occasion, however, his wife wrote to him enclosing a
short letter from his legitimate daughter. He then asked for special
permission to send a letter in reply to his daughter under the address
of his wife. As a result, the prison authorities withdrew, on ..
December, 1959, the permission for him to correspond with Miss W. On
.. February, 1960, the prison authorities seized a letter written on
.. January, 1960 by Miss W to the Applicant. On .. April, 1963, after
more than three years' interruption of his correspondence with Miss W,
the Applicant was again allowed to correspond with her but only on
condition that he did not write to his wife.
The Applicant states that as a result of the long interruption of his
correspondence with Miss W difficulties and misunderstandings arose
between them, and Miss W even married another man from whom, however,
she subsequently became divorced.
After lodging a hierarchical appeal (Dienstaufsichtsbeschwerde) which
was rejected on .. May, 1963 by the Ministry of Justice in
Baden-Württemberg, the Applicant instituted proceedings regarding the
interference with his correspondence with the Administrative Court
(Verwaltungsgericht) of Karlsruhe. The Administrative Court did not
consider itself to be competent to deal with the case but transferred
it, on .. January, 1964, to the Court of Appeal of Karlsruhe. On ..
July, 1964, the Court of Appeal, which considered the Applicant's
petition as an application lodged under Article 23 of the Introductory
Act to the Judicature Act, declared it inadmissible, partly because
some of the decisions complained of had been given before Article 23
of the said Act had entered into force, and partly because the
Applicant had not exhausted his remedies according to the Execution
Ordinance (Strafvollzugsordnung).
The Applicant alleges a violation of Article 8 of the Convention. He
states that, in fact, the interference with his correspondence was an
act of revenge for his refusal to participate in the divine services
in prison and to accept Christmas gifts which were being distributed
by the Prison Chaplain, and he therefore also alleges a violation of
Article 8 of the Convention.
(b) The Applicant also complains that many letters which he had written
in prison had not been forwarded because they were considered to be
defamatory or offensive. He mentions, in particular, letters to his
lawyer, Professor P, in East Berlin, and to his fiancée who is living
in the Soviet Occupied Zone of Germany. He has submitted extracts of
two such letters to his fiancée which mainly deal with the conditions
in German prisons in general and with certain particular cases of
ill-treatment in a Hamburg prison.
The Applicant maintains that some of the letters seized were formal
complaints and that, therefore, he was prevented from exhausting
domestic remedies in regard to some allegations. He provides no further
details on this point.
He alleges violations of Articles 8 and 10 of the Convention.
3. Miscellaneous complaints
(a) Certain complaints relate to the medical treatment which the
Applicant has received during his detention.
He states that as he suffered from a stomach ulcer he was sent to
hospital where the competent doctor ordered that he should follow a
special diet ("Milchbreikost"). After he had been discharged from the
hospital, the Prison Doctor, paying no attention to his state of
health, permitted his return to the "silence division" although he was
in fact physically unfit for such severe detention. In the "silence
division", the Prison Doctor only gave him special diet once a day,
although the other doctor who had treated him at the hospital had
ordered that such diet should be given twice a day.
The Applicant also complains that the Prison Doctor gave him a certain
injection without first consulting a surgeon.
In regard to the action of the Prison Doctor, the Applicant complained
to the Medical Association (Ärztekammer) and he also lodged a
hierarchical appeal (Dienstaufsichtsbeschwerde) with the Ministry of
Justice, but without success. He also brought a criminal charge against
the Doctor, but the Public Prosecutor refused to prosecute.
He alleges a violation of Article 2 of the Convention.
(b) On .. May, 1965, the Regional Court (Landgericht) of Karlsruhe held
a hearing in regard to the divorce proceedings pending between the
Applicant and his wife.
The Applicant was forced to appear at this hearing and before appearing
at the court he was ill-treated and brutally handcuffed by police
officers, so that one hand was injured, and he was trodden upon. In
regard to his hand injury, the Doctor did not give him any treatment.
At the hearing, his lawyer protested against this violent treatment to
which the Applicant had been subjected but the President merely asked
his lawyer to keep calm.
The Applicant complained without success of the brutal action of the
police officers and the failure of the Doctor to give him adequate
treatment. The Ministry of Justice rejected his complaint on .. May,
1965. His complaint to the Local Medical Association
(Bezirksärztekammer) of North-Baden was transmitted to the Ministry of
Justice which, on .. June, 1965, rejected the complaint by referring
to its previous decision of .. May, 1965.
The Applicant also submitted an application for a judicial decision
(Antrag auf gerichtliche Entscheidung) to the Court of Appeal in
Stuttgart which rejected this application on .. August, 1965.
The Applicant finally brought criminal charges in respect of the same
incident, but the Public Prosecutor at the Regional Court decided on
.. August, 1965 not to take any action, and this decision was upheld
on .. September, 1965 by the Senior Public Prosecutor at the Court of
Appeal. He asked for legal aid in order to be able to bring the case
before the Court of Appeal, but on .. November, 1965, legal aid was
refused.
(c) In respect of the alleged ill-treatment of an Algerian prisoner,
the Applicant complained to the Federal Parliament (Bundestag). This
complaint was transmitted to the Parliament (Landtag) of
Baden-Württemberg which dismissed it on .. January, 1964.
He also submitted a criminal charge against the prison officer
allegedly responsible for this ill-treatment, but on .. September,
1964, the Public Prosecutor refused to institute criminal proceedings.
(d) The Applicant also brought a criminal charge against a prison
officer who had allegedly made certain antisemit statements. Although
his allegations were supported by another prisoner, the Public
Prosecutor did not find that there were sufficient reasons to institute
criminal proceedings, and this decision given on .. January, 1964 was
upheld on .. March, 1964 by the Senior Public Prosecutor.
(e) From the file, it appears that the Applicant also lodged a number
of other complaints in regard to various prison officers who had
allegedly insulted him or had otherwise behaved improperly. He also
complained that a letter sent to him by his lawyer had been opened by
the prison authorities and he complained to the Bar Association about
the way his lawyer had assisted him. Other complaints concerned
disciplinary punishments imposed on him and on one occasion he alleged
that he had not enough writing paper at his disposal. None of these
complaints were apparently successful, and it is not clear to what
extent he actually intends to raise these complaints before the
Commission.
Proceedings before the Commission
Whereas the proceedings before the Commission may be summarised as
follows:
By letters of 11th and 27th September and 14th October, 1965, the
Applicant informed the Commission that he wished to withdraw his
Application. Before the Commission had taken any decision in regard to
this withdrawal, the Applicant indicated, however, by letter of 4th
December, 1965, that he again wished the Commission to examine his
case.
On 6th October, 1966, the Commission decided:
(a) to give notice to the Federal Government, pursuant to Rule 45,
paragraph (3) (b), of the Commission's Rules of Procedure, of the
Application in so far as it concerned the Applicant's complaint as to
his detention in a "silence division" and to invite the Government to
submit its observations on the admissibility of that part of the
Application;
(b) to adjourn its examination of the remaining parts of the
Application.
The Government submitted its observations on 16th December, 1966 and
the Applicant's reply is dated 28th December, 1966 and was received by
the Commission on 4th January, 1967.
In view of the contents of the Applicant's reply, the Government
submitted, on 20th January, 1967, a further pleading which was
communicated to the Applicant for his information.
Submissions of the Parties
Whereas the submissions of the Parties may be summarised as follows:
The Federal Government referred to a statement which it had received
from the Ministry of Justice of Baden-Württemberg in regard to the
Applicant's complaint. The Ministry had stated that this complaint
should be so interpreted as to concern primarily the fact that the
Applicant had not been allowed to join other prisoners in taking walks
in the prison courtyard as provided for in the Service and Prison
Files. In fact, the Applicant had been prohibited from mixing with his
fellow-prisoners in these walks in the prison courtyard and he had to
do his open-air exercise in the so-called "Normalhof" ("ordinary
yard"). The Government quoted the following statement by the Ministry
of Justice of Baden-Württemberg:
"While the prisoners admitted to the more informal walks in the prison
courtyard are allowed to talk to each other, those spending their
open-air exercise time in the so-called "Normalhof" are not allowed any
conversation with their fellow-prisoners during that time."
The Government further submitted that the Applicant's complaint was
inadmissible, since the domestic remedies had not been exhausted. In
reply to an appeal lodged by the Applicant in August, 1964, the Federal
Constitutional Court had informed him, on .. September, 1964, that,
before lodging a constitutional appeal, he should exhaust all other
remedies and that, in particular, he should lodge an application for
a judicial decision according to Article 23 of the Introductory Act to
the Judicature Act. Nevertheless, the Applicant had again written to
the Federal Constitutional Court which, on .. October, 1964, had
formally rejected his constitutional appeal as being inadmissible. The
Applicant had not even after this decision lodged an application for
a judicial decision according to Article 23 of the Introductory Act to
the Judicature Act, and consequently he had not exhausted the legal
remedies at his disposal.
The Applicant replied that his complaint concerned the illegal silence
division in the Bruchsal prison. While the Penal Code and the Service
and Prison Rules contained provisions regarding the use of solitary
confinement, there were no corresponding provisions regarding the
system of silence division and this system was therefore illegal.
In regard to the legal remedies, the Applicant confirmed that, in reply
to his complaint of August, 1964, the Federal Constitutional Court had
informed him that he should first lodge an application with the
competent Court of Appeal. Nevertheless, he had immediately submitted
a new complaint to the Federal Constitutional Court and had been
informed that this complaint had been registered as a constitutional
appeal. The Applicant maintained, however, that the decision of ..
October, 1964 referred to by the Government had not concerned the
present complaint but that the reference number of the case had been
confused with the number of another appeal.
The Government contested that the numbers of two appeals had been
confused and undertook to submit the relevant file of the Federal
Constitutional Court if the Commission should require further
information on this point.
THE LAW
Whereas, in regard to the Applicant's complaint as to his detention in
a "silence division" (paragraph 1 of the statement of facts), it is to
be observed that, under Article 26 (Art. 26) of the Convention, the
Commission may only deal with a matter after all domestic remedies have
been exhausted according to the generally recognised rules of
international law;
Whereas the Government has submitted that the Applicant had not lodged
an application for a judicial decision (Antrag auf gerichtliche
Entscheidung) according to Article 23 of the Introductory Act to the
Judicature Act (Einführungsgesetz zum Gerichtsverfassungsgesetz);
whereas the Applicant has not contested this statement by the
Government; whereas, therefore, it must be assumed that the Applicant
did not use this particular remedy;
Whereas it also appears that the Federal Constitutional Court had
informed the Applicant, by letter of .. September, 1964, that he should
make use of this remedy before lodging a constitutional appeal;
Whereas, consequently, the Applicant has not exhausted the domestic
remedies within the meaning of Article 26 (Art. 26) of the Convention,
in particular, as the failure to lodge an application for a judicial
decision also excluded him from having his allegations examined by the
Federal Constitutional Court;
Whereas, in these circumstances, it is superfluous to examine the
contents of the Federal Constitutional Court's decision of .. October,
1964 in regard to which the Parties have made contradictory statements;
Whereas, in regard to the Applicant's complaint as to interference with
his correspondence with a certain A.W (paragraph 2 (a) of the statement
of facts), it appears that the Applicant lodged a complaint which was
treated as an application for a judicial decision according to Article
23 of the Introductory Act to the Judicature Act; whereas the competent
Court of Appeal decided that this application was inadmissible since
some of the decisions complained of had been given before 1st April,
1960, the day on which Article 23 of the said Act had entered into
force and, further, in regard to subsequent decisions, the Applicant
had not exhausted the remedies which were available to him under the
Execution Ordinance (Strafvollzugsordnung);
Whereas Article 26 (Art. 26) of the Convention provides that the
Commission may only deal with a matter after all domestic remedies have
been exhausted, and within a period of six months from the date of the
final domestic decision;
Whereas, as regards the decisions given before 1st April, 1960 in
respect of the Applicant's correspondence with A.W, the Applicant
failed to observe the six months' time-limit, since he did not submit
his case to the Commission until 29th July, 1964, that is more than six
months after the dates of the decisions complained of;
Whereas, as regards the decisions given after 1st April, 1960 in
respect of that correspondence, the Applicant failed to exhaust the
domestic remedies at his disposal; whereas, in particular, he did not
take action according to the Execution Ordinance; whereas his failure
to take such action also prevented him from having his complaint
examined by the Court of Appeal;
Whereas it follows that in regard to the Applicant's complaint as to
the interference with his correspondence with A.W, he did not comply
with the conditions laid down in Article 26 (Art. 26) of the
Convention;
Whereas, in so far as the Applicant complains of the ill-treatment of
an Algerian prisoner (paragraph 3 (c) of the statement of facts), it
is to be observed that, according to Article 25 (Art. 25) of the
Convention, the Commission may only receive petitions from a person,
organisation or group of individuals "claiming to be the victim of a
violation by one of the High Contracting Parties of the rights set
forth in this Convention";
Whereas, in regard to the present complaint, the Applicant does not
allege that he is, directly or indirectly, the victim of the
ill-treatment concerned;
Whereas it follows that this part of the Application is incompatible
with Article 25 (Art. 25) of the Convention and is to be rejected
according to Article 27, paragraph (2) (Art. 27-2), of the Convention;
Whereas, in so far as the Applicant's complaints are directed against
his lawyer (paragraph 3 (e) of the statement of facts), it appears from
Article 25 (Art. 25) of the Convention that the Commission can admit
an application from an individual only if that individual claims to be
the victim of a violation of the Convention "by one of the High
Contracting Parties"; whereas, on the other hand, the Commission has
no competence ratione personae to admit applications directed against
private individuals;
Whereas it follows that this part of the Application which is directed
against the Applicant's lawyer is incompatible with the Convention
within the meaning of Article 27, paragraph (2) (Art. 27-2), of the
Convention (see Application No. 1599/62, Yearbook of the European
Convention on Human Rights, Volume 6, page 356);
Whereas, in regard to the remainder of the Application, including the
Applicant's complaints as to interference with his correspondence with
persons other than A.W, inadequate medical treatment, ill-treatment of
the Applicant and antisemit statements by a prison officer (paragraphs
2 (b), 3 (a), (b), (d) and (e) of the statement of facts), an
examination of the case as it has been submitted does not disclose any
appearance of a violation of the rights and freedoms set forth in the
Convention and, particularly in Articles 3 and 8 (Art. 3, 8);
Whereas it follows that these parts of the Application are 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.