CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 24 mai 1966

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  THE FACTS   Whereas the facts presented by the Applicant - excluding those which relate to the complaints already rejected by the Commission - may be summarised as follows: ----------------------------- (1) A partial decision was given on 1 June 1965 but has not been published. -----------------------------   The Applicant is a German citizen, born in 1930 and at present detained in prison in Berlin. He is represented before the Commission by Mr. Hasso Fügart, a lawyer practising in Berlin.   He alleges that on 28 October 1963 he was ill-treated by prison officers in the Tegel prison in Berlin and he describes the incident as follows:   After a dispute between him and a certain Mr. K., an official in the prison administration, in regard to the refusal of the prison authorities to forward a letter from the Applicant to the Landgericht, Mr. K. ordered him to be brought to an isolation cell. Following this order, his arms were twisted behind his back by the prison officers L. and H. while another prison officer S. hit him and jabbed him with keys. He was then dragged along like an animal down the three staircases to the solitary confinement cell. While in this cell, H., S. and a third officer named ... entered, and he was pushed into a corner. Ludwig then choked him from behind so that he could hardly breathe and S. hit him in the face so that his glasses fell on the stonefloor and were broken. O., H. and S. then secured him with chains using much brutality and violence. He was thrown on the floor and an old scar from a fracture of his head was affected and began bleeding, as well as his nose. O. then trod on his back in order to pull the chain even tighter with the result that he had pains in his stomach and kidneys. He was then pulled up by his hair and handcuffed with equal brutality. The handcuffs which were so tight that his hands became swollen were tied to the chain which had already been fastened to his body. While he was tied up in such a way that he could hardly move for pain, K . hit his head with a truncheon. His teeth bled and have subsequently remained loose. He lost consciousness and cannot say what else was done to him. When he regained consciousness, he was lying on the floor and had horrible pains in his head, stomach, kidneys and teeth. He could no longer move his wrists because of the tight handcuffs. In the afternoon of 29 October, he was taken from the cell where he had then been lying for 24 hours on the stone floor without care or medical treatment.   In his original submissions regarding this incident, the Applicant stated that he had tried to lodge several complaints regarding the alleged ill-treatment but that these complaints had all been returned to him under some pretext. The further submissions by the Parties on the question of exhaustion of domestic remedies are set out below.   Proceedings before the Commission   Whereas the proceedings before the Commission may be summarised as follows:   On 1 June 1965, the Commission, while declaring other parts of the present Application inadmissible, decided, in accordance with Rule 45, paragraph 3 (b), of its Rules of Procedure, to give notice of the Application, in so far as it related to the alleged ill-treatment, to the Federal Government and to invite it to submit its observations in writing on the question of admissibility. The Government was requested, primarily, to comment on the issue of exhaustion of domestic remedies.   On 21 July 1965, the Government submitted its observations on admissibility.   The Applicant's reply to the Government's observations was submitted by his lawyer in a pleading of 1 September 1965 and, in addition, the Applicant himself submitted a number of letters to the Commission.   On 10 December 1965, the Commission decided to hold an oral hearing in the case.   Both Parties submitted further written pleadings, the Applicant's lawyer on 31 January 1966 and the Government on 4 February 1966.   The oral hearing was held on 11 and 12 February 1966. Following the hearing, the Commission decided to adjourn its decision on admissibility and, in the meanwhile, to ask the Government to provide certain further information and documents.   The Government submitted further information and documents in two pleadings of 1 April and 9 May 1966. The Applicant's lawyer submitted, in reply, two pleadings of 6 and 17 May 1966.   The Government also submitted a statement on 20 May 1966. The Commission decided, however, on 24 May 1966 not to take note of that statement as it had been submitted after the closing of the Government's written pleadings.   Submissions of the Parties   Whereas the submissions of the Parties may be summarised as follows:   1. As to the question of the Applicant's withdrawal of his Application   The Government has submitted on 4 February 1966 a photocopy of a document which states as follows:   "Berlin, 27 January 1964 I hereby declare that I withdraw my submissions of 1 January 1964 to the Council of Europe in Strasbourg.   Heinz Kornmann"   The Government further explained that this declaration had, by mistake, been filed with the Berlin authorities instead of being forwarded to the Commission. In the Government's opinion, this document seemed to show that the Applicant had not been clear himself as to the effect of his Application and had not attached any great importance to it. On the other hand, the declaration of withdrawal was apparently also of interest in regard to the question whether the Applicant had exhausted domestic remedies. The fact that he had even withdrawn his Application with the Commission seemed to support the Government's submission that he had not exhausted the domestic remedies (as to the Government's submissions on exhaustion, see below). This declaration might also indicate that the Applicant himself had doubts as to whether the allegations made in his Application were well-founded.   The Applicant's lawyer stated that it was not clear whether the declaration referred to by the Government concerned the incident of 28 October 1963. The declaration might have concerned some other submissions which had remained in the files of the Berlin authorities. If, however, the declaration concerned the case of ill-treatment, the Applicant's own conduct showed that he did not intend to withdraw his complaint, since, in fact, he had persistently pursued this case. Moreover, a withdrawal would not prevent the Commission from examining the case since the Commission's proceedings were not bound by formal considerations, their purpose being to examine the substance of the alleged facts.   2. As to the question of exhaustion of domestic remedies (Article 26 of the Convention)   A. Legal remedies available   The Government submitted that, in German law, the alleged acts by prison officers would constitute the offence of causing bodily harm in the exercise of official duties (Körperverletzung im Amt). As this was a criminal offence, the primary remedy at the Applicant's disposal would be the lodging of a penal charge (Strafanzeige) with the competent Public Prosecutor (Staatsanwalt) and, if the Public Prosecutor decided to take no action, he could appeal to the Senior Public Prosecutor (Generalstaatsanwalt). If the Senior Public Prosecutor also decided not to institute criminal proceedings, he could avail himself of the "prosecution enforcement procedure" (Anklageerzwingungsverfahren) provided for by Article 172 of the Code of Criminal Procedure (Strafprozessordnung). This meant that the Applicant could have lodged an application with the competent Court of Appeal, in the present case, the Kammergericht in Berlin.   In the Government's opinion, these proceedings would have constituted the principal remedies.   The Government also referred to the possibility of lodging an application to the Kammergericht in accordance with Article 23 of the Introductory Act to the Judicature Act (Einführungsgesetz zum Gerichtsverfassungsgesetz) which provides for an administrative appeal in regard to decisions and measures taken by the prison authorities.   The Government further indicates the possibility of bringing civil proceedings against the Land Berlin in respect of malfeasance (Amtspflichtverletzung) by officers of justice. The right to bring such proceedings is embodied in Article 34 of the Basic Law (Grundgesetz) and details are given by the relevant provisions of the Civil Code (Bürgerliches Gesetzbuch), in particular Article 839. Proceedings should have been instituted before the Landgericht and the right course for the Applicant would have been to file an application for legal aid and for the appointment of a lawyer by the Court.   The Government emphasised, however, that the principal remedy in the present case was a criminal charge lodged with the Public Prosecutor.   The Applicant's lawyer contested the submission that criminal proceedings were the principal remedy in the present case. He stated that an application under Article 23 of the Introductory Act to the Judicature Act was also a remedy which could be considered and, in fact, it was up to any prisoner who had been ill-treated to decide which of these two remedies he wished to choose. If he chose an application under Article 23, he would not have to bring also a criminal charge.   The Applicant's lawyer did not consider civil proceedings to be an effective remedy in respect of alleged punishable acts, unless it had first been established in criminal proceedings that an offence had been committed. The Courts would never grant legal aid unless this condition was satisfied.   In regard to criminal proceedings, the Applicant's lawyer submitted that the appeal from the Senior Public Prosecutor to the Court of Appeal was not an effective remedy in cases of this kind. He considered that this remedy which had ben introduced by a 1951 amendment to the Code of Criminal Procedure was ineffective. The application to the Court of Appeal must be signed by a lawyer. The appellant has the possibility of asking for legal aid but this is only granted if his application is considered to offer some prospect of success and this would certainly not be the case after two Public Prosecutors had rejected the charge. The most serious difficulty was, however, that no lawyer could be found who would be willing to assist an applicant in such proceedings. No lawyer would sign an application for the prosecution of prison officers with whom he inevitably had constant dealings. There was a system according to which, in cases of this kind, one generally turned to a lawyer practising on another circuit but, in the present case the Applicant would not have been technically able to establish contact with such a lawyer. It would have been impossible for him to find a lawyer who dealt with criminal cases in another town and who was prepared to represent him before the Kammergericht. It was true that there existed a possibility to have an "emergency lawyer" (Notanwalt) appointed. This meant that, if there was no qualified barrister on the Court circuit who was willing to accept a case, the Presiding Judge of the Court could appoint a lawyer to take up the case. But current jurisprudence - which, however, was in dispute - did not allow the appointment of an "emergency lawyer" in the "prosecution enforcement procedure". Moreover, if an application was lodged with the Court of Appeal, the chance of success would be insignificant (less than one per thousand) when two Public Prosecutors had already rejected the charge.   The Applicant's lawyer added that, on principle, he himself refused to represent his clients in such proceedings before the Kammergericht since, in any case, they offered no chance of success. He did not remember whether the Applicant had asked him to assist him in proceedings before the Kammergericht but thought it possible that he had done so. If so, the Applicant's lawyer had certainly refused to assist him in accordance with his general principle in these matters.   The Government contested that the "prosecution enforcement procedure" was without practical importance and referred to the commentary of Schwarz-Kleinknecht on the Code of Criminal Procedure. In this commentary there are references to a number of decisions by Courts of Appeal in regard to Article 172 of the Code of Criminal Procedure. The Government also referred to certain decisions by which applications under Article 172 had been granted. Moreover, if the Applicant was unable, for lack of funds or any other reason, to find a lawyer to take such an appeal in hand within a month, he had the possibility, according to Article 299 of the Code of Criminal Procedure, to place this fact on the record of the Amtsgericht, and this would constitute a due observance of the time-limit. It was not understandable on what ground the Applicant's lawyer believed that no lawyer would have been willing to assist the Applicant in these proceedings, unless their refusal would be due to the fact that they did not take seriously the idea of pursuing such a charge. In any case, it had not been shown that the Applicant tried to find a lawyer to assist him for such purpose. The Government also submitted that the question whether or not an "emergency lawyer" could be appointed only arose if legal aid had been refused since, if legal aid was granted, a counsel would also be assigned ex officio.   B. Implementation of the legal remedies available   (a) The Applicant stated that, on 10 November 1963, he handed over to the prison authorities a letter addressed to the Landgericht and containing a complaint concerning the incident of 28 October 1963. He added that he received no reply to that letter.   The Government's representative submitted, at the oral hearing, that a letter from the Applicant to the Landgericht had been sent from the prison on 15 November 1963 but that no further information was available in regard to the fate of that letter.   Subsequently, the Government, at the Commission's request, made further investigations but informed the Commission that the result had been negative. No letter of November 1963 had been traced, and the Government referred to the following statement made in this regard by the Berlin Senator for Justice: "There is a possibility that the letter of 10 or 15 November 1963 was returned to the Applicant at the time. It happened several times that Kornmann, when being heard personally, withdrew his complaint and that the letter containing the complaint was then returned to him".   The Applicant's lawyer submitted that, in view of the Government's failure to trace the letter concerned, it had to be assumed, for the purposes of the present Application, that the Applicant, by sending this letter, had complied with Article 26 of the Convention.   (b) The Government, while referring to a statement by the Berlin Senator for Justice, informed the Commission that, on 27 January 1964 the Applicant sent to the Senator a letter in which he described the incident of 28 October 1963 as he saw it. He withdrew this letter by a declaration of 3 March 1964 and it was therefore taken to his prison record.   (c) The Government also informed the Commission that on 11 September 1964 the Applicant submitted to the Public Prosecutor at the Landgericht a charge (Strafanzeige) in respect of the alleged ill-treatment; that, on 26 October 1964 the Public Prosecutor at the Landgericht decided to discontinue the proceedings in respect of that charge, since the investigation had shown that the prison officers concerned had acted in the exercise of their official duties; that, on 14 November 1964 the Applicant appealed from that decision; and that this appeal was rejected on 26 November 1964 by the Senior Public Prosecutor at the Kammergericht; that, in his decision, the Senior Public Prosecutor indicated that there was a further appeal to the Kammergericht; that, however, the Applicant failed to avail himself of that remedy.   The Government also mentioned that the Applicant complained of the same incident in a letter of 14 October 1964 to the Senior Public Prosecutor at the Kammergericht; that this letter was transferred, on 2 November 1964 to the Public Prosecutor at the Landgericht; and that, on 15 March 1965 the Public Prosecutor informed the Applicant that his allegations had already been examined in connection with the previous proceedings and that therefore the Public Prosecutor did not find any further action required.   The Government has also submitted the files of the Public Prosecutor in regard to the Applicant's complaint. It appears from these files that, after receiving the Applicant's charge of 11 September 1964 the Public Prosecutor transmitted the complaint to the Prison Director (Vorstand der Strafanstalt Tegel) on 6 October 1964 asking him to submit the comments of the prison officers concerned.   On 14 October 1964 the Prison Director replied by referring to a previous statement of 4 August 1964 regarding the same incident. In this statement of 4 August 1964, the Prison Director had stated, in particular, that on 28 October 1963 the Applicant had committed a serious breach of prison discipline; that he had shown active resistance against the prison officer O. and had bitten another prison officer's hand; and that his resistance had been broken with two strokes of a truncheon. In this respect, the Prison Director referred to a short statement by O. dated 7 November 1963. He added that the Applicant had withdrawn his complaints regarding this incident. The Prison Director also submitted a statement by a psychiatrist on the Applicant's mental condition.   The contents of these files do not show that any further investigations were made by the prosecuting authorities.   The Government has also submitted the Applicant's medical record relating to his period of detention. It appears from this record that, while in prison, the Applicant has been under almost continuous medical treatment. It seems, however, that he did not see the Prison Doctor between 28 October and 12 November 1963. On the latter date, the Applicant apparently complained of stomach pains and the doctor gave him some tablets. There is no appearance of any medical examination having been carried out in view of the Applicant's allegations regarding ill-treatment. On 20 December 1963 the doctor has noted: "Loosening of teeth". Similar entries appear, however, even before 28 October 1963 and in a certificate of 20 August 1965 it is stated that those symptoms result from a dental disease from which the Applicant has been suffering for years.   The Applicant's lawyer submitted that the Applicant had not lodged an application with the Kammergericht in the form required by Article 172 of the Code of Criminal Procedure since it had not been possible for him to find a lawyer willing to represent him (as to the details, see the Applicant's lawyer's submissions as quoted above). He maintained, however, that the Applicant, without the assistance of a lawyer and consequently not in the form required by German law, had applied to the Kammergericht but he provided no details about such a petition by the Applicant.   (d) The Applicant's lawyers submitted that the Applicant had lodged an application with the Kammergericht pursuant to Article 23 of the Introductory Act to the Judicature Act, but he was unable to indicate the date of this application or the decision, if any, which had been given by the Kammergericht.   The Government contested that such an application had been lodged, since neither the Government nor the Applicant's lawyer had been able to find any trace of such an Application.   3. As to the substance of the complaint   The Government referred to the following statement by the Berlin Senator for Justice in regard to the incident concerned:   "On 28 October 1963, the principal of House III of Tegel Prison had the Applicant brought before him at the central office of his house to question him on the letters which the Applicant had written. When asked by the principal if the letters should be forwarded, the Applicant replied in an irritated and insolent manner something to this effect: 'Of course, I wrote the letters in order that they should be despatched and not for your waste-paper basket'. As a result of this, the Applicant was taken to an isolated cell (Absonderungszelle). While in this cell (from about 10.30 a.m. to 13.45 p.m.) he raged and rioted continuously to such an extent that the quiet and order of the house were considerably disturbed. For that reason his arms were eventually tied to his body by three prison officers on orders of the house guardian. While this was being done, he insulted the three officers by calling them: 'SS-pigs, raters, blackguards, and gangsters'. Apart from that, he put up a strong fight when his hands were chained, thereby wounding one of the officers by a scratch wound. Another officer had his hand bitten by the Applicant. In order to manage him and to prevent further injury, the officers broke his resistance by two blows with a truncheon. On this occasion the Applicant's glasses were damaged. After being chained, the Applicant was taken to an isolated cell in House I of the institution".   The Government also referred to certain written statements made on 28 October 1963 by the prison officers concerned.   In subsequent submissions, the Government took the view that comments on the substance of the case were not required in view of its submission regarding the non-exhaustion of domestic remedies.   The Applicant's lawyer referred to the Applicant's statement on the incident as set out above and added certain comments on the administration of the Tegel Prison and on the situation of the detainees in that prison in general.   4. Conclusions of the Parties   The Government requested that the Application should be declared inadmissible for non-exhaustion of domestic remedies.   The Applicant's lawyer submitted that the Applicant had exhausted the domestic remedies and requested that the Application should be declared admissible.   THE LAW   Whereas the Government has submitted a declaration of 27 January 1964 in which the Applicant states that he withdraws his submissions to the Council of Europe dated 1 January 1964; whereas the Applicant's complaint regarding the alleged ill-treatment on 28 October 1963 was first submitted to the Commission by a letter dated 1 January 1964;   Whereas, therefore, the Commission finds it clear that the declaration of withdrawal concerns the Applicant's complaint regarding the incident of 28 October 1963;   Whereas it has not been indicated to the Commission in what circumstances this declaration was signed by the Applicant; and whereas there is some reason to doubt that this declaration was sincere since the Applicant has subsequently made it clear, on many occasions, that he wished to pursue the proceedings before the Commission;   Whereas, in regard to a declaration of withdrawal of an application made before the Commission's decision on its admissibility, the Commission, in its decision to strike out the application concerned, has consistently included the following proviso: where "nul impératif d'ordre général, touchant aux exigences de la Convention ... ne s'oppose à la radiation du rôle", i.e, where no reasons of a general character affecting the observance of the Convention necessitate a further examination of the complaint (see Applications Nos. 2169/64, 2204/64 and 2326/64, Collection of Decisions Volume 14, pages 76 (82 - 83));   Whereas, in one case where a declaration of withdrawal was submitted after admissibility, the Commission found that the Application concerned raised problems under the Convention which might extend beyond the interests of the particular Applicants and decided, on that ground, to retain it in spite of their declaration of withdrawal (see Application No. 2294/64 X and Y against the Federal Republic of Germany);   Whereas the Commission finds that the present Application also raises problems under the Convention which may extend beyond the interests of the particular Applicant; and whereas, consequently, the Commission considers that there are sufficient reasons to examine the admissibility of the Application irrespective of the possible existence of a declaration of withdrawal on the part of the Applicant;   Whereas, accordingly, it is not necessary to examine the precise circumstances in which the declaration was made by the Applicant or the further question whether the fact that the Applicant has since made it clear that he intends to pursue the proceedings could affect the validity of his previous declaration;   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, according to the generally recognised rules of international law;   Whereas the Respondent Government has submitted that the principal remedy available to the Applicant was the remedy by means of lodging penal proceedings (Strafanzeige) with the Public Prosecutor;   Whereas the Commission observes that the Applicant complains of ill-treatment by prison officers and that the alleged acts constitute criminal offenses in German law;   Whereas, therefore, the Commission accepts the Government's submission that, in order to comply with Article 26 (Art. 26), the Applicant was obliged to lodge a charge (Strafanzeige) with the competent Public Prosecutor and, in the case of refusal by the Public Prosecutor to institute criminal proceedings, to use all remedies available under German law against such decision by the Public Prosecutor;   Whereas, as regards the question of the implementation of this remedy, the Applicant has stated that, on 10 November 1963, he handed over to the prison authorities a letter to be forwarded to the Landgericht;   Whereas the Government has confirmed that a letter from the Applicant to the Landgericht was sent from the prison on 15 November 1963;   Whereas, in spite of investigations having been made, the Government has failed to obtain any further information as to the fate of that letter;   Whereas the Commission observes that the contents of the letter of November 1963 are not known and that, moreover, the letter was not sent to the Public Prosecutor but to the Landgericht; whereas, consequently, the Commission does not find it possible to take this letter into account as being an indication that the Applicant has exhausted domestic remedies;   Whereas it also appears that the Applicant complained of the incident concerned in a letter to the Senator of Justice dated 27 January 1964;   Whereas this letter also was addressed to an authority other than the Public Prosecutor and whereas it appears that the Applicant withdrew this letter on 3 March 1964; whereas it follows that it cannot be taken into consideration for the purpose of deciding whether the domestic remedies have been exhausted;   Whereas it also appears that on 11 September 1964, the Applicant submitted a charge (Strafanzeige) to the Public Prosecutor at the Landgericht;   Whereas, on 26 October 1964, the Public Prosecutor decided not to institute criminal proceedings; whereas, on 14 November 1964, the Applicant appealed from that decision;   Whereas, on 26 November 1964 his appeal was rejected by the Senior Public Prosecutor at the Kammergericht;   Whereas the Senior Public Prosector informed the Applicant that, in respect of that decision, he could lodge an application for a judicial decision with the Kammergericht;   Whereas the Applicant has in no way shown that he availed himself of this possibility;   Whereas the Applicant's lawyer has submitted that an application to the Kammergericht was not to be considered as an effective remedy which had to be exhausted under Article 26 (Art. 26) of the Convention;   Whereas,in particular, he has stated that the Applicant would not have been able to find a lawyer willing to represent him in the proceedings before the Kammergericht and that, moreover, the chance of success in such proceedings would have been insignificant;   Whereas the Commission considers that, in general, an application lodged in accordance with Article 172 of the Code of Criminal Procedure must be considered as an effective and sufficient remedy which has to be exhausted within the meaning of Article 26 (Art. 26) of the Convention;   Whereas, in this respect, the Commission refers to its decision in regard to Application No. 1404/62 (Wiechert v. Federal Republic of Germany, Yearbook VII, page 124 et seq.);   Whereas, in regard to the circumstances of the present case, the Commission observes that the Applicant has submitted that it would have been impossible for him to find a lawyer willing to assist him, but that, on the other hand, he has in no way shown that he made any attempts to obtain the assistance of a lawyer in the proceedings concerned; and whereas, moreover, he has not shown that he applied to the Kammergericht for legal aid in respect of these proceedings;   Whereas the Commission finds no special circumstances which dispensed the Applicant from exhausting this particular remedy;   Whereas, consequently, in this particular respect, the Applicant has not exhausted the domestic remedies within the meaning of Article 26 (Art. 26);   Whereas, in those circumstances, the Commission does not find it necessary to comment on the submissions of the Parties as to the existence of other legal remedies in the present case.   Now therefore the Commission declares this Application INADMISSIBLE.