CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 avril 1998

.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. 27425/95                       by G. D.                       against Germany          The European Commission of Human Rights (First Chamber) sitting in private on 16 April 1998, the following members being present:              MM    M.P. PELLONPÄÄ, President                 N. BRATZA                 A. WEITZEL                 C.L. ROZAKIS            Mrs   J. LIDDY            MM    L. LOUCAIDES                 B. MARXER                 I. BÉKÉS                 G. RESS                 A. PERENIC                 C. BÎRSAN                 K. HERNDL            Mrs   M. HION            Mr    R. NICOLINI              Mrs   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 13 March 1995 by G. D. against Germany and registered on 29 May 1995 under file No. 27425/95;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      25 July 1997 and the observations in reply submitted by the      applicant on 23 September 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, a German citizen born in 1927, is a pensioner currently detained at Berlin Tegel prison in Germany.   Before the Commission he is represented by Mr H. Reiser, a lawyer practising in Regensburg.        The facts of the case, as submitted by the parties, may be summarised as follows.   A.    Particular circumstances of the case        In 1989 the Munich Regional Court (Landgericht) convicted the applicant of attempted murder, and sentenced him to eleven years imprisonment.        The application concerns two sets of facts both relating to the applicant's then detention at Straubing prison when serving the prison sentence.   1.    In 1991, a fellow prisoner K.M., while still detained in Berlin, was found to have a serious heart condition.   He was transferred to Straubing prison where he was apparently subjected to a normal prison regime.   In December 1991 K.M. allegedly had a heart attack; he died in January 1992.        The applicant instituted proceedings, inter alia, against the prison director, though without success, as the autopsy disclosed that K.M. had died of lung cancer.   His constitutional complaint (Verfassungsbeschwerde) was dismissed by the Federal Constitutional Court on 18 November 1994.   2.    On 24 February 1994 the director of Straubing prison issued an order that every fourth prisoner who had received a visitor that day was to submit, undressed, to a body search.        On the same day, the applicant was visited by his wife in prison. After the visit, two members of staff took the applicant to a separate room where he was requested to take off all his clothes.   The applicant took off some clothes, but not all, whereupon he was warned about his obligation to obey the order.        As the applicant refused to undress, his underpants were removed by a member of prison staff in the presence of two further members who had been called for security reasons.   The applicant stayed quiet, and no physical force was used.   The applicant's clothes were inspected, and the staff looked to see whether the applicant was carrying prohibited items on his body, though he was not touched while this happened.        On 28 February 1994 the applicant filed a complaint against the Straubing prison director and others with the Regensburg Public Prosecutor's Office (Staatsanwaltschaft), complaining, inter alia, that a body examination at his age amounted to degrading treatment contrary to Article 3 of the Convention, and requesting the punishment of the officers concerned.        On 2 May 1994 the Public Prosecutor's Office decided not to institute criminal proceedings.   The decision referred in particular to an instruction (Anordnung) of the Straubing institution director according to which every fourth prisoner who had received a visitor had to submit, undressed, to a body investigation (mit einer Entkleidung verbundene körperliche Durchsuchung).   The decision considered that, in view of the German courts' case-law, this measure complied with S. 84 para. 2, first sentence, of the Execution of Sentences Act (Strafvollzugsgesetz; see below, Relevant domestic law.)        The applicant's complaint against this decision was dismissed by the Public Prosecutor General's Office on 22 June 1994.        The applicant filed a request for judicial review of his complaint against the prison director (gerichtliche Entscheidung im Klageerzwingungsverfahren).   The applicant pointed out that he had never smuggled anything into the prison and had never had anything to do with drugs.   He contended that the prison director had committed the offences of bodily injury and of insult.        On 19 August 1994 the Nuremberg Court of Appeal (Oberlandesgericht) declared the request inadmissible.   The Court noted that it did not transpire from the applicant's submissions how the prison director had committed bodily injury or insult.   Thus, the latter had ordered that, after having received a visitor,   every fourth prisoner had to submit to a body investigation, requiring undressing. However, such an examination was not necessarily coupled with force. The latter only became necessary if the prisoner without reason refused to undress and to submit to an examination.   This measure was nevertheless covered by S. 84 of the Execution of Sentences Act.        The Court moreover found that it did not amount to a criminal offence if the prison director ordered his staff to employ force if a person refused to submit to a body examination.        In his constitutional complaint (Verfassungsbeschwerde) the applicant complained, inter alia, of an examination of his bodily orifices and of psychological and bodily abuse (körperliche und seelische Misshandlung).   The complaint was dismissed by the Federal Constitutional Court (Bundesverfassungsgericht) on 18 November 1994.   B.    Relevant domestic law        S. 84 para. 2 of the Execution of Sentences Act (Strafvollzugs- gesetz) states:   <Translation>        "Only in the case of danger or upon an order of the institution      director in a concrete case is it admissible to undertake a body      examination which requires undressing.   The examination must take      place in a closed room.   Other prisoners shall not be present."        S. 94 para. 1 of the Prison Act envisages forceful coercion by prison staff where they are properly carrying out their duty and the object aimed at thereby cannot be achieved in any other way.        According to S. 109 of the Execution of Sentences Act, a request for judicial review may be filed in respect of a measure concerning the execution of a sentence.   The complaint must allege that the measure at issue breaches the rights of the person concerned (in seinen Rechten verletzt).     COMPLAINTS   1.    The applicant complains under Article 3 of the Convention that the death of fellow prisoner K.M. implies that he himself will be submitted to wrong, careless or inadequate medical treatment at Straubing prison.   2.    Also under Article 3 of the Convention the applicant complains of inhuman and degrading treatment in that, at his age, he was forced to undress by the prison officers and submit to a body examination, including his bodily orifices, without any concrete reason.        The applicant submits that he has never breached the law in prison and has never had anything to do with drugs.   He also has no contacts with other prisoners.   Thus, there was no danger of collusion or of absconding.   Not even security in prison justified the body examination of every fourth prisoner.   In his case there was never any concrete danger within the meaning of S. 84 para. 2 of the Execution of Sentences Act; and there was also no order in the concrete case, as required by that provision.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 13 March 1995 and registered on 29 May 1995.        On 10 April 1997 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 25 July 1997.   The applicant replied on 23 September 1997.     THE LAW   1.    The applicant complains under Article 3 (Art. 3) of the Convention about insufficient medical treatment at Straubing prison, and about degrading treatment in that he was forced to submit to a body examination.        Article 3 (Art. 3) of the Convention states:        "No one shall be subjected to torture or to inhuman or degrading      treatment or punishment."   2.    The Commission has first dealt with the applicant's complaint that the death of a fellow prisoner is an indication of inadequate medical care at Straubing prison.   However, the applicant has not substantiated that he himself requires particular care, or that he suffers from any particular illness requiring medical treatment.        This part of the application is therefore manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The Commission has next dealt with the applicant's complaint under Article 3 (Art. 3) of the Convention that he was forced to submit to a body examination.   a)    In respect of this complaint, the respondent Government submit that the applicant has not complied with the requirement under Article 26 (Art. 26) of the Convention as to the exhaustion of domestic remedies.   Thus, he could have filed an action for judicial review of his complaint according to S. 109 of the Execution of Sentences Act. The action which the applicant filed was unsuited even for indirectly obtaining a court review of the search ordered.        The applicant submits that the remedy which he employed at least indirectly achieved the aim of having the lawfulness of the contested measure examined.        The Commission notes that the applicant filed a request with the Nuremberg Court of Appeal for judicial review of his criminal complaint against the prison director.   In last resort, he obtained a decision of the Federal Constitutional Court.        The Commission need nevertheless not examine whether in this respect the applicant has complied with the requirement as to the exhaustion of domestic remedies within the meaning of Article 26 (Art. 26) of the Convention, since this part of the application is in any event inadmissible for the following reasons.   b)    The Government contend that the measure complained of was based on S. 84 para. 2 of the German Prison Act in that the applicant's examination was ordered by the prison director in an individual case. Moreover, direct coercion is authorised by S. 94 of the Prison Act.        The Government refer to the practice at Straubing prison according to which a prisoner's body is examined without any physical contact.   Thus, the prisoner is asked to open his mouth, to bend over and to move his fingers and toes.   These measures assist in establishing whether the person is carrying prohibited items on his body.   Exceptionally, prisoners with long hair are physically searched. In the present case, the applicant was asked voluntarily to take off his clothes, though he refused.   Since he remained passive, the removal of his underpants was carried out very carefully without use of physical force.   The items of clothing were examined and the staff looked to see whether he was carrying prohibited items on his body. The applicant was not touched while this happened.        The Government point out that in the present case there were additional special reasons for searching the applicant.   Thus, upon the applicant's arrest in 1988 a special police task force had to be employed, as he had retreated to the attic of his house from where he shot at the police with a machine gun.   Subsequently, a total of eight weapons and extensive supplies of ammunition were found.   Moreover, he had himself told the police that whoever went after his liberty would be "stamped out" ruthlessly.   While in prison the applicant has repeatedly been heard as uttering threats and making aggressive remarks.   Reference is also made to a medical expert opinion quoted in the judgment of 1989 according to which the applicant was aggressive and had an extrapunitive attitude.   Thus, he posed particular dangers; his hostile attitude continued in prison, and his search had to rule out the possibility of his carrying prohibited items.        The applicant submits that his complaint is well-founded. Ordering a person to strip naked in order to conduct an examination constitutes an interference with Article 3 (Art. 3) of the Convention in view of the effect on that person's sense of shame and the humiliating feeling of being naked in the presence of fully clothed persons.   In the present case, the measure also contradicted the statutory provisions as there was no indication of any imminent danger. Moreover, the prison director's instruction to make every fourth convicted person undress immediately after a visit and to subject him to an examination constitutes a general order permitted only when persons are first brought to prison.   A decision taken in an individual case, such as his, must be justified by a concrete suspicion that the prison rules are in danger of being breached.   The court decisions were themselves unlawful.        The applicant also contends that the body search cannot be justified by referring to assessments of prison officers according to which he is portrayed as stubborn, unreasonable and extremely dangerous.   The only decisive factor can be whether there was a concrete suspicion that the applicant's wife had brought prohibited objects with her.   There was also a violation of the ban on the use of excessive force, which in itself made the instruction unlawful.        The Commission recalls the Convention organs' case-law according to which ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (Art. 3) of the Convention. The assessment of this minimum is, in the nature of things, relative. It depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Eur. Court HR, Ireland v. United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 162).        The Commission has examined the circumstances of the present case.        It notes at the outset the instructions issued by the director of Straubing prison according to which every fourth prisoner who had received a visitor had to submit to a body search in order to ensure that he had not received any prohibited items. Insofar as the applicant submits that in his case the search was unnecessary, the Commission has furthermore had regard to a medical expert opinion referred to by the Government according to which the applicant was considered aggressive. Indeed, his conduct upon arrest and in prison led the prison authorities to regard him as dangerous.        The applicant moreover does not refer to any other occasion where he had to submit to such a search.   There is also no indication that the measure was intended as a form of retribution.        It is true that the applicant refused to undress completely, and three prison officers then removed his underpants.   However, the applicant offered no physical resistance, and no force was employed by the police officers.        Finally, the Commission has taken note of the Government's submissions - not contested by the applicant - that the police officers conducted only a superficial search in that they looked at the applicant.   During such searches, the person concerned has to open his mouth, bend over, and move his fingers and toes.   However, the applicant was not touched while this happened.        In view of the concrete circumstances of the case, in particular that the applicant was considered dangerous and that he was only superficially examined, the Commission finds that the treatment complained of does not attain the minimum level of severity so as to fall within the scope of Article 3 (Art. 3) of the Convention.        The remainder of the application is, therefore, manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.         M.F. BUQUICCHIO                              M.P. PELLONPÄÄ      Secretary                                    President to the First Chamber                         of the First Chamber