CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 juillet 1973

.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   The facts of the case, as submitted by the applicant, may be summarised as follows:   The applicant is a German citizen, born in 1936 and presently detained in prison in Berlin .... Before his arrest he was practising as a barrister (Rechtsanwalt) in Berlin.   It follows from the applicant's statements and from documents submitted by him that on .. October 1970 he was arrested on the suspicion of having helped a prisoner to escape (Gefangenenbefreiung) and of attempted murder committed with others (gemeinschaftlicher versuchter Mord). On .. May 1971 he was acquitted of these charges by the Berlin Regional Court (Landgericht). The proceedings are however still pending because the decision was quashed, at the appeal (Revision) of the Public Prosecutor (Staatsanwaltschaft), and the case was sent back to the Regional Court for a new trial.   Moreover, the applicant is accused of being one of the founders of a criminal organisation, called Red Army Group (Rote Armee Fraktion = RAF), and of having, as a member of this organisation, participated in three bank robberies committed on .. September 1970 in West Berlin. As regards these charges the applicant was on trial before the Berlin Court of Appeal (Kammergericht) when he lodged this application.   The applicant states that since his arrest he has been kept in strict isolation in the prison of Berlin .... He is not only kept in solitary confinement (Einzelhaft) but also excluded from participating in the day-to-day affairs of the prison community, such as church-going and leisure hours.   The applicant further states that he has been deprived by various court orders of reading material. As an example he has submitted a decision of .. March 1972 by which the Berlin Court of Appeal ordered that certain publications (inter alia "Peking Rundschau", "Rote Robe", "rote Hilfe"), which were sent to the applicant should not be given to him. As regards the grounds for this measure, the Court referred to a prior decision of .. February 1972, a copy of which was not submitted by the applicant.   By decision of .. May 1972 the Investigating Judge of the Court of Appeal ordered two days of strict confinement (stronger Arrest) for the applicant because when participating in a leisure hour, he had, despite the warning of a warder, called to another prisoner and thereby tried to make contact with him.   On .. August 1972 the Court of Appeal rejected the applicant's request to lift his solitary confinement.   The Court stated without giving further reasons that the restrictions imposed on the applicant had to be maintained in order to secure his safe detention (weil sonst die sichere Verwahrung des Angeklagten gefährdet erscheint).   In January 1973 the applicant repeated his request to lift his solitary confinement stating that the investigations carried out against him were terminated and that consequently there was no longer a danger that he would suppress evidence (Verdunkelungsgefahr). He also alleged that the solitary confinement violated his basic rights (Articles 1 and 104 (1), phrase 2 of the Basic Law = Grundgesetz).   This request was rejected by the Court of Appeal on .. February 1973. The Court stated that the applicant's solitary confinement was justified under Article 119 (3) of the Code of Criminal Procedure (StPO) as being necessary in view of the purpose of the detention on remand and the order in prison.   The Court pointed out that the applicant was strongly suspected of being a member of a criminal organisation, namely the so-called "Y-Z gang", and of having, together with other members of this group and by using weapons, helped a prisoner to escape. The Court stated that the liberation of political prisoners was one of this group's objects.   In this connection it referred to a decision by the Federal Court (Bundesgericht) on .. July 1972 in the course of investigation proceedings against Y and other gang members. According to this decision the group had in 1971 and 1972 elaborated plans for the liberation of its detained members.   Furthermore, the Court of Appeal stated that on October 1972 a prisoner, one W., had admitted to having been promised 250 DM if he helped the applicant to escape. The plan had been to seize a warder as a hostage and to demand the applicant's release in exchange for the warder's release.   The Court found that the statements of prisoner W. were credible because this prisoner had in fact received 250 DM from an unknown person. Furthermore he had named two other prisoners who were involved in the plan and who were in fact corresponding with the applicant.   Moreover, the Court pointed out that the applicant had declared at the session of .. January 1973 that the arrest of some gang members including himself would not stop the fight against the criminal system. He had also proclaimed that one should help all prisoners to escape. The Court found that these and similar statements made by the applicant were likely to rouse prisoners against the warders and even to provoke a revolution in prison.   According to the Court the applicant also had, in the course of the trial, repeatedly praised the objectives of the "Red Army Group" and recommended revolutionising the prisons.   The Court concluded that it was the applicant's own behaviour which made it impossible to lift his solitary confinement.   Finally the Court stated that solitary confinement did not mean that the applicant was completely isolated from human contact. He was only, as far as possible, kept apart from the other prisoners. On the other hand, the Court pointed out, until January 1973 he was granted 319 visiting hours when he saw his relatives and other people. In addition the applicant conferred with eight different lawyers in 342 visiting hours. The Court also mentioned the daily contacts he had with the prison personnel. It added that the applicant had his own radio in his cell and could obtain nearly all the reading material he wanted.   Complaints   The applicant complains that the Court of Appeal did not establish the facts stated in its above decision in formal proceedings and that neither his lawyers nor he himself were given the possibility to submit observations.   He states that the isolation measures are carried out meticulously by the prison staff (for the slightest infringements of the isolation rules the applicant is liable to disciplinary detention).   According to the applicant the fact that the prisoner is strictly forbidden all contact with his fellow prisoners creates a very different situation for him compared with normal conditions of detention on remand, for at community events during recreation and on other occasions as well, the prisoners usually engage in lively conversation - actually desired and permitted by the prison authorities - in the course of which they discuss their everyday problems.   These opportunities for communication are denied to the applicant. They are nevertheless essential to enable a prisoner to stand a long period of compulsory social isolation without lasting mental effects, since a minimum of social contacts is one of the elementary needs of every human being. That enforced and almost complete social isolation leads ultimately to serious mental damage has long been recognised by specialists.   The isolation in which the applicant has been kept for more than two years is bound, sooner or later, to result in serious, irreparable damage to his health. He is living in a complete social vacuum. The fact that no obvious symptoms of illness have yet manifested themselves says much for his powers of resistance but does not rule out the danger that his health may be seriously affected for the future.   Visits from his defence counsel and relatives cannot make up for the lack of normal social contact inside the prison. Whilst discussion, during visits from his counsel, is in any case restricted to questions of a legal nature, the weekly visits of relatives, limited to about twenty minutes, take place under the supervision of one of the prison staff and criminal police officers, so that no spontaneous, natural conversation is possible.   The applicant points out that other persons detained on remand in the same prison and accused of being members of the RAF are not subjected to any comparable reprisals. On the contrary, they are given an opportunity of maintaining a minimum of normal social contacts by spending the leisure hour together with other prisoners.   To complete the picture of how his detention on remand is being enforced, the applicant adds that he is not even allowed to obtain the reading material he would like from outside the prison. In this respect he refers to the above cited order of .. March 1972 by the Berlin Court of Appeal.   In the applicant's opinion the measure taken against him violates Article 3 of the Convention. They consequently also constitute a breach of Articles 1 and 104 (1), second sentence, of the Basic Law.   Article 3 of the Convention forbids inhuman treatment, especially of prisoners. This prohibition is also applicable to the enforcement of detention on remand. The essence of this provision is to make it incumbent upon the State, in its dealing with individuals, to see that no physical or mental injury is inflicted upon them by improper treatment.   This principle has also been expressed in the second sentence of Article 104 (1) of the Basic Law of the Federal Republic of Germany, according to which persons held in custody shall be neither physically nor mentally ill-treated. Article 1 of the Basic Law also declares the inviolability of human dignity. This precept, one of the most important in this country's legal order, is generally also transgressed when a prisoner is subjected to treatment which is bound to cause lasting mental injury.   The provision in Article 3 of the Convention and the fore-mentioned provisions of the Basic Law contain an unrestricted prohibition or order. Any measure taken by the State against an individual, which is contradictory to these provisions, the applicant states, is unlawful and this without any reservation.   This fundamental fact is naturally of particular significance where detention on remand is concerned; it is entirely in conformity with the spirit and purpose of detention on remand.   Detention on remand is both a means of safeguarding a State's right of punishment and an aid to prosecution. Its effects on the detained are harsh enough as it is since a man's freedom is one of his most highly prized legal rights. For anyone who is to be presumed innocent (Article 6 (2) of the Convention) detention on remand represents an exceptional sacrifice for the sake of the State's right of prosecution, a sacrifice that can be demanded only if the manner of enforcement and the consequences of the detention are reasonable and bearable. There derive from this objective limits to the manner of enforcement, which must on no account be overstepped by the State. These limits are laid down, inter alia, by Article 3 of the Convention and Article 1 and Article 104 (1), second sentence, of the Basic Law, the provisions of which must therefore be complied with in all cases; in doubtful cases, this applies even where they conflict with the purpose of detention on remand.   According to the applicant this is also the consistent practice of German criminal justice, according to which the aged and sick must be spared detention on remand even where this entails a danger of their absconding.   The treatment of the applicant allegedly infringes the provisions prohibiting inhuman treatment (Article 3 of the Convention and Article 104 (1), second sentence, of the Basic Law). If a prisoner is kept in solitary confinement for an excessive length of time against his will and thus suffers physical or mental injury this must be regarded as inhuman treatment. There is all the more reason to qualify as "inhuman" treatment whereby a person, like the applicant, in addition to being kept in solitary confinement, is isolated from his fellow prisoners in the manner described above. In these circumstances all the greater heed must be paid to the fact that treatment which ignores the applicant's vital needs is bound to result in grave mental injury.   The treatment accorded to the applicant is allegedly contrary also to the inviolable principle of the protection of human dignity (Article 1 of the Basic Law). This principle enjoins respect for every individual's personality in all circumstances. This respect must always be expressed in treatment worthy of a human being. If the applicant is subjected to long years of complete social isolation, this amounts to disregard for his most vital, elementary human needs. Such treatment must therefore, the applicant concludes, be regarded as unworthy of a human being.   THE LAW   The applicant has first complained that the Court of Appeal did not establish in formal proceedings the facts on which it based its decision of .. February 1973. However, under Article 25 (1) (Art. 25-1) of the Convention, it is only the alleged violation of one of the rights and freedoms set out in the Convention that can be the subject of an application presented by a person, non-governmental organisation or group of individuals. With regard to the present complaint, no right to formal proceedings as regards the request of a prisoner on remand to set aside an order for his solitary confinement is as such included among the rights and freedoms guaranteed by the Convention.   It is true that Article 6 (1) (Art. 6-1) of the Convention provides that everyone is entitled to a fair and public hearing in the determination of his civil rights and obligations or of any criminal charge against him. The Appeal Court's decision, however, nether determined a civil right of the applicant nor a criminal charge against him. It did not even concern the lawfulness of the applicant's detention within the meaning of Article 5 (4) (Art. 5-4) but only dealt with the question whether the order for the applicant's solitary confinement should be set aside or not.   It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention.   The applicant has further alleged that his solitary confinement violated Article 3 (Art. 3) of the Convention which provides that "No one shall be subjected to torture or to inhuman or degrading treatment or punishment".   The Commission also examined this complaint, ex officio, under Article 17 (Art. 17) in conjunction with Article 5 (1) (Art. 5-1) and under Article 18 (Art. 18) in conjunction with Article 5 (1) (Art. 5-1).   The Commission first wishes to state its opinion that prolonged solitary confinement is undesirable, particularly where the prisoner concerned is in detention on remand. In the latter case, if exceptional reasons have justified such continuous detention, it can obviously best be shortened by expediting the trial proceedings.   However, in the present case there are two important factors which qualify the significance of the applicant's solitary detention.   The Commission first notes that the applicant is not completely isolated but is kept apart from the other prisoners solely for the purpose of making his detention secure and of thus maintaining order in the prison. On the other hand, he is allowed to receive visits and has made ample use of this possibility up to February 1973, as he has had more than 650 visiting hours according to the uncontested statements in the Appeal Court's decision of .. February 1973. Furthermore, the applicant has reading material available and has a radio in his cell. In reality therefore he is undergoing segregated rather than solitary confinement.   The Commission secondly accepts that the applicant by his own behaviour supplied valid reasons to the German authorities for the refusal of his request to set aside the order for his solitary confinement. The Court of Appeal stated in this respect that the applicant had declared that the fight of the Red Army Group against the criminal system would continue despite his arrest and that all prisoners should be helped to escape. The applicant has, in his submissions to the Commission, not contested that he made these remarks.   In view of all these circumstances the Commission does not find that the applicant's solitary confinement amounts to inhuman or degrading treatment or punishment within the meaning of Article 3 (Art. 3), of the Convention.   The Commission, having also considered this complaint ex officio under Article 5 (1) (Art. 5-1) in conjunction with Article 18 (Art. 18), is equally satisfied that the authorities were not subjecting the applicant to solitary, or what was in effect segregated, confinement for a purpose other than that of bringing him to trial.   An examination by the Commission of this complaint as it has been submitted, including an examination made ex officio, does not therefore disclose any appearance of a violation of the rights and freedoms set forth in the Convention and in particular in Article 3 (Art. 3), or in Article 5 (1) (Art. 5-1) read in conjunction with either Article 17 (Art. 17) or Article 18 (Art. 18).   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.   For these reasons, the Commission DECLARES THIS APPLICATION INADMISSIBLE.