CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 19 janvier 1989

.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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 13040/87                       by Lothar W. ARZT                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 19 January 1989, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   H.C. KRÜGER Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 1 May 1987 by Lothar W. Arzt against the Federal Republic of Germany and registered on 25 June 1987 under file No. 13040/87;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicant states that he is a Canadian citizen, born in 1943 in Offenbach/Federal Republic of Germany.   He was detained in prison in Berlin when he lodged the present application and now lives in Switzerland.           The facts submitted may be summarised as follows.           On 4 March 1986 the applicant was remanded in prison on the authority of a warrant of arrest (Haftbefehl) issued the same day and replaced by another warrant issued on 19 August 1986.   He was suspected of having committed fraud and breach of trust.   On 22 September 1986 the Berlin Court of Appeal (Kammergericht) ordered that the applicant's detention on remand should continue.   The Court found that strong suspicion still existed and that there was also a danger of absconding in view of the sentence which the applicant had to expect if convicted and in view of his foreign nationality and residence.   Therefore, bail in the amount of DM 50,000 as offered by the applicant was considered to be insufficient.   Furthermore, in the Court's opinion there was a danger of collusion (Verdunkelungsgefahr). In this relation the Court stated that the applicant's wife had contacted the victims in order to persuade them to accept a friendly settlement.   This was considered as an attempt by the applicant to obstruct the establishment of true facts.   Finally, the Court noted that the investigation concerned a difficult and complex matter, necessitating that rogatory letters be sent to various countries, namely South Africa, Switzerland, Austria and Great Britain.   The files of various civil court proceedings also had to be examined.           On 15 January 1987 the Court of Appeal again prolonged detention on remand.   It stated that strong suspicion continued to exist.   The Court noted that the Public Prosecutor had announced that he would shortly file an indictment.   Referring to the difficulties of the investigation mentioned in the earlier decision of 22 September 1986, the Court added that in the meantime a medical expert opinion had to be obtained as the question had arisen whether or not the applicant suffered from an organic brain disease.   The Court concluded that the length of the detention on remand was still proportionate even though the applicant might not be convicted on all charges on which the arrest warrant had been based.           On 8 August 1986 and 23 September 1986 the District Court (Amtsgericht) Tiergarten refused the applicant's request for permission to phone his wife.   The Court stated that there was danger of collusion.           On 10 February 1987 the District Court stopped a letter which the applicant intended to send, via his wife, to a Swiss newspaper. This decision was confirmed by the Regional Court (Landgericht) and, on 9 April 1987, by the Court of Appeal.   The letter contained, inter alia, the following statements:   "Although innocent I am spending the twelfth month of detention on remand in complete isolation."   "Many others are detained on remand up to four years and ten months without having been put on trial."           Leaving the question open whether the applicant's allegations in respect of alleged denial of adequate medical treatment and confiscation of documentary evidence were objectionable, the Court of Appeal found that in any event the applicant's statements in the letter which was stopped, that he was kept in complete isolation and that many others were detained on remand up to four years and ten months, were untrue and a grossly distorted description of the conditions in prison. The Court noted in this respect that the applicant had admitted that, despite existing danger of collusion, he was allowed to participate in the daily exercise period of one hour together with other prisoners. Furthermore, the case referred to by the applicant to justify his allegation about the length of detention on remand concerned a Turk who had been arrested in June 1982 and convicted in June 1984 of homicide.   It was true that the Federal Court quashed the judgment but the Turk was subsequently convicted again in February 1987.   Contrary to these facts, with his letter the applicant had intended to convey the impression that persons were detained for more than four years before they had any occasion to defend their case in a trial.   The measure complained of was therefore considered to be justified in accordance with Section 119 (3) of the Code of Criminal Procedure (StPO) for the maintenance of order in prison.           The Court of Appeal added that it considered it inappropriate that the objectionable passages be blackened or that an explanatory note be sent with the applicant's letter.   However, the Court pointed out that the applicant was free to rewrite his letter without the offending passages.           An indictment was filed on 18 February 1987.           On 6 July 1987 the applicant was convicted by the Berlin Regional Court of fraud (Kreditbetrug) and breach of trust (Untreue) in two instances.   He was sentenced to two years and nine months' imprisonment.           Also on 6 July 1987 the Court of Appeal rejected as being inadmissible a complaint by the applicant that the medical treatment in prison was insufficient.   The Court found that, insofar as the applicant complained that he was not allowed to seek treatment from a specialist outside the prison, he had not made a request in due form to the competent trial court's president, but only in his submission of 12 May 1987 to the Court of Appeal; it was now for the trial court's president to decide on it.   The Court of Appeal further stated that, according to information received by the prison authorities, the applicant had not requested physiotherapeutic treatment.   Therefore he could not complain that he did not receive such treatment.   According to the prison director the applicant had accepted to be treated by the prison psychologist.   His present complaint, however, as the Court of Appeal stated, was not directed against the alleged refusal by the prison psychologist to treat the applicant.           The applicant did not appeal against conviction and sentence. He explains that he renounced appealing as this was the only possibility of being released from prison on remand and expelled to Switzerland, where he could finally undergo the necessary medical treatment.   The applicant furthermore explains that, by accepting the judgment, he will be able to recuperate seized documents in order to prove his innocence in subsequent retrial proceedings.   On 4 January 1988 the applicant informed the Secretariat that his new address was in Switzerland.   COMPLAINTS           The applicant complains that he was wrongly convicted and sentenced and that his defence had been obstructed.   He also complains of the length of his detention on remand, lack of medical treatment in prison and the stopping of his letter addressed to a Swiss newspaper. He invokes Articles 3, 5, 6 and 10 of the Convention.     THE LAW   1.       The applicant has complained that he was wrongly convicted and sentenced and hindered from defending himself adequately.           It is true that Article 6 para. (1) (Art. 6-1) of the Convention secures to everyone charged with a criminal offence the right to a fair hearing.           However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of this provision as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.           In the present case the applicant failed to appeal against his conviction and sentence and has, therefore, not exhausted the remedies available to him under German law.   Moreover, an examination of the case does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from exhausting the domestic remedies at his disposal.           It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and this complaint must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.       The applicant has further complained of the length of the detention on remand which lasted sixteen months, namely from 4 March 1986 until his conviction on 6 July 1987 by the Regional Court sentencing him to two years and nine months' imprisonment.           It is true that Article 5 para. 3 (Art. 5-3) of the Convention secures to everyone charged with a criminal offence and detained on remand the right to be brought to trial within a reasonable time or to release pending trial. However, it follows from the various decisions given by the Berlin Court of Appeal prolonging the applicant's detention on remand that the applicant was seriously suspected of having committed fraud.   In addition, the Court considered that there existed a danger of collusion and of absconding.   The Court furthermore pointed out that the investigations were complicated, in particular as rogatory letters   had to be sent to various countries.   There is nothing to show that these reasons were ill-founded and arbitrary and that the applicant's detention on remand was unduly prolonged or release on bail refused without justifying reasons.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicant has also complained that a letter addressed to his wife, with the purpose of being forwarded to a Swiss newspaper, was stopped by the prison authorities.           It is true that Article 8 (Art. 8) of the Convention secures to everyone the right to respect for his private life and correspondence. However, according to the uncontested findings of the Court of Appeal, the letter in question contained untrue and grossly distorted allegations on the conditions in prison.   To this extent the present case can be distinguished from the Silver and others case, in which the Commission and the Court considered that the stopping of letters on the basis of a blanket prohibition on prisoners' letters containing material intended for publication regardless, inter alia, of the contents of the letter in question, was not "necessary in a democratic society ... for the prevention of disorder" (Eur.   Court H.R., judgment of 25.3.1983, Series A no. 61, pp. 38, 40, paras. 99 and 105;   Comm. Report 11.10.80, paras. 344 - 351).   Taking into account that the applicant had the possibility of rewriting the letter without the offending passages, the Commission concludes that, in view of its contents, the seizure of the letter was a proportionate measure justified under Article 8 para. 2 (Art. 8-2) of the Convention, being in accordance with German law and necessary for the maintenance of order in prison (cf.   No 8283/78, Dec. 14.10.80, DR 23 p. 127).           An examination by the Commission of this complaint does not therefore disclose any appearance of a violation of the rights and freedoms set out in the Convention and, in particular, in the above Article.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.       The applicant has finally complained that he did not receive adequate medical treatment in prison.           The Commission has examined this complaint under Article 3 (Art. 3) of the Convention, which prohibits inhuman treatment.           It notes that, according to the documents submitted by the applicant, he was offered some treatment in prison although allegedly not the particular treatment which he considered necessary. However, the applicant has failed to show that the treatment offered to him was insufficient.   The Commission further notes that, according to the decision of the Court of Appeal of 6 July 1987, no final decision had been given up to that time regarding the applicant's request for special medical treatment, as such a request had, for the first time, been made in the applicant's submissions to that Court. This request had to be forwarded to and decided by the trial court's presiding judge.           In these circumstances an examination of this complaint also does not disclose any appearance of a violation of the rights and freedoms set out in the Convention and, in particular, in the above Article.           It follows that this part of the application is likewise manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention               For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission                President of the Commission          (H.C. KRÜGER)                                (C.A. NØRGAARD)