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مشاهدة النسخة كاملة : X. v. the FEDERAL REPUBLIC OF GERMANY - 1628/62 [1963] ECHR 2 (12 December 1963)



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07-15-2009, 12:13 AM
X. v. the FEDERAL REPUBLIC OF GERMANY - 1628/62 [1963] ECHR 2 (12 December 1963)
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant is a Lithuanian citizen born in ... . He has beenconvicted seven times by various courts in Germany and since 1959 hasbeen detained in the prison of A., serving a sentence of four years'imprisonment following a conviction for theft. He was released fromprison on ... 1963.The Applicant states that while detained in the prison of B in 1953,he contracted tuberculosis and that the prison doctor refused to givehim adequate medical treatment, that his complaints to the authoritieswere either suppressed or unsuccessful and that it was not until afterintervention by the International Red Cross (with whom he communicatedby a letter smuggled out of the prison) that he was transferred to ahospital, that a subsequent examination confirmed that he was sufferingfrom tuberculosis. In respect of these statements, the RespondentGovernment has, in its observations, given an explanation which theCommission does not deem necessary to reproduce for the purpose of thepresent decision.The present Application concerns the treatment given to him in theprison of A., and he alleges violations of the following Articles ofthe Convention:1. Article 3. He states that he still suffers from tuberculosis and hasconstant pains in the vertebral column. On 30th May 1961 the prisondoctor cancelled his special food ration and refused to give him propermedical treatment. As the Applicant, for his part, refused to undertakestrenuous work on the ground that it would impair his health, he wason 26th September 1961 subjected to disciplinary punishment of solitaryconfinement with a ration of dry bread for a period of two weeks. Onthe thirteenth day he was given a supplementary ration of a quarter ofa litre of milk and 30 grams of margarine. He states that he contracteda painful stomach ailment during this period and lost ten kilos inweight, weighing 72 kilos when he entered prison, but only 61.5 kilosat the end of his solitary confinement.He states that, on 19th October 1961, the Public Prosecutor of Crejected a complaint by the Applicant against this treatment on theground of lack of proof, although he had asked for an interview witha representative of the Prosecutor's Office in order to explain hiscomplaint in detail, that further complaints to the Minister ofJustice, to the Petitions' Committee of the Parliament of NordRhein/Westphalia and to the Public Prosecutor of D where neverforwarded by the prison administration, and that his request to thelocal Public Prosecutor that criminal proceedings should be initiatedagainst prison officials for inflicting corporal injury and forsuppression of letters was similarly withheld by the DocumentationOfficer on 14th November 1961.In respect of these allegations, the Respondent Government in itsobservations of 24th May 1963, submitted with medical evidence that theApplicant does not suffer from an active tuberculosis. It was stated,in particular, that during the years 1960 - 63, he was X-rayed atregular intervals and examined in the observation ward of the prison;that these examinations revealed only an insignificant, inactive andhealed tuberculosis which did not require treatment; that, on hisdischarge from the observation ward, he was declared fit for light ormoderately heavy work and that it was not considered necessary tocontinue the practice of giving him supplementary rations. It wasfurther submitted that he had never been ordered to do strenuous workbut, nevertheless, on 8th September 1961, he declined to carry out thelight work assigned to him. The prison doctor had declared him fit toundergo the above sentence (during his detention in solitaryconfinement the prisoner receives only bread and water except on thefourth and the eighth day and every successive third day when hereceives a normal diet); at the end of the two weeks' confinement theApplicant's weight was 61.5 kilos as compared to 65 kilos on the dayhe entered prison. Finally, it was submitted that the Applicant'scomplaints had not been suppressed. His letter of complaint of 28thSeptember 1961 resulted in the opening of an investigation which wassuspended on 6th October 1961, re-opened on 26th October 1961 but againsuspended on 10th April 1962. Further action taken by the Applicant andhis lawyer did not result in a re-opening of the investigation. Theletter of 14th November 1961 had, according to the recollection of thedocumentation officer in question, not been withheld but, in any event,this letter should have been given to the competent prison official andnot to the documentation officer.2. Articles 8 and 10. The Applicant states that the following lettershave been suppressed by the prison authorities who have therebyviolated the provisions of these two Articles:(a) a letter of 8th February 1961 to the Lithuanian legation in London(the exiled government of that country having no representationin Bonn);(b) a letter of 6th June 1961 to his lawyer;(c) a letter of 23rd October 1961 to his lawyer;(d) letters of 20th June, 9th and 11th July 1962 to his lawyer;(e) a letter of 22nd August 1961 to the Petitions' Committee of theParliament of Nord Rhein-Westphalia;(f) a letter of 29th January 1962 to the Petitions' Committee;(g) a letter of 31st October 1961 to the Public Prosecutor of C;(h) a letter of 8th January 1962 to the Public Prosecutor of D;(i) a letter of 21st November 1961 to the Federal Minister of Justice;(j) a letter of 23rd October 1961 to the European Commission of HumanRights.He adds that such suppression of correspondence is common in the aboveprison and that other prisoners are also prevented from contactingofficial persons and organisations in order to expose their grievancesand complaints against the prison administration. The Applicantdisputes the statements made by the Respondent Government and statesthat the records are not accurate. In his counter-observations, hementions other examples of suppressed letters and adds that on a numberof occasions his requests for authorization to write letters was leftunanswered.In respect of these allegations the Respondent Government, in itsobservations of 24th May 1963, submitted that the prison records, inwhich all letters emanating from detainees must be entered, show nomention of a letter addressed to the Lithuanian legation in London (see(a) above).As regards the correspondence with the Applicant's lawyer (see (b) -(d) above), the records show that in the period from August 1960 untilMarch 1963 he sent eleven letters without interference; his letter of6th June 1961 concerning the discontinuation of his supplementaryrations was replied to by the prison doctor two days later and he didnot complain that his letter was not forwarded, that his letters of23rd October 1961, 9th and 11th July 1962 all contained statementsreported to be manifestly untrue. On one of these occasions he wasinformed that he was authorised to write another letter in place of theone withheld but he declined to avail himself of this offer. Theholding of these letters was authorised under Article 155 (2) ofofficial prison regulations. The letter of 20th June 1962 was dulydispatched.As regards the letters addressed to the Petitions' Committee of theParliament of Nord Rhein-Westphalia (see (e) - (f) above), it wassubmitted that on 22nd August 1961 the Applicant requestedauthorization to write a letter in order to obtain a transfer toanother prison, inter alia, on the ground that he intended to complainagainst the prison doctor. An investigation proved that his complaintswere unfounded but, on 7th September 1961 he received, nevertheless,the necessary paper and his letter was duly dispatched on the followingday. It was further submitted that there was nothing in the prisonrecords to show that the Applicant on 29th January 1962 handed in fordispatch a letter addressed to the above Committee.As regards the letter addressed to the Public Prosecutor of C (see (g)above), the records show that on 21st October 1961 he was authorisedto write a letter which was dispatched on 23rd October 1961. They showno mention of a second letter dated 31st October 1961.As regards the letter addressed to the Public Prosecutor of D (see (h)above), the records do not confirm that any such letter was handed infor dispatch on 8th January 1962.As regards the letter addressed to the Federal Ministry of Justice (see(i) above), it was stated that on 17th October 1961 the Applicantrequested permission to write a letter complaining of the "theft" ofhis passport (see below); having been informed that the competentauthority was the District Administrative President of C, he addressedthe letter to this authority and handed it in for dispatch on 23rdOctober 1961. After an investigation as to the truth of the assertionsmade by the Applicant, which proved unfounded, it was forwarded to theaddressee on 2nd January 1962 with a correction by the prison director.As regards the letter addressed to the Commission of Human Rights, itwas submitted that the prison regulations then in force stipulated thatcorrespondence should be written in German unless there were compellinggrounds to the contrary. As the Applicant knew the German language, theprison director held that no grounds justified the use of English. TheApplicant refused to rewrite his complaints in German. The regulationswere changed as from 1st July 1962 and in the future, applications tothe Commission cannot be withheld under any circumstances.3. Article 13. The Applicant alleges that the above interferences withhis freedom of correspondence have deprived him of an effective remedybefore the national authorities.In general, it was submitted by the Government that, since hiscommittal to prison, the Applicant has continually addressed complaintsto many authorities, generally without interference from the prisonadministration. His assertion that he was deprived of an effectiveremedy against the national authorities in Germany does not correspondto the facts.4. Articles 17, 25, 26 and 60. The Applicant alleges violationsof these Articles in respect of the same facts mentioned above.5. Article 1 of the First Protocol. When the Applicant was transferredto prison in 1960 he realised that his Lithuanian passport was missing. After several complaints which were left unanswered, he was finallyinformed in writing that his passport had been forwarded to the Mayorof E and, later, informed orally that it had been lost "when goingthrough official channels". In February 1961 he was refused permissionto contact the Legation in London in order to ask it to raise thematter with the German Government. He alleges that he has beenintentionally deprived of his passport, particularly because, at hisarrest, doubts were raised as to whether he was a Lithuanian citizen.He has also been informed that the official document ordering histransfer to prison indicated his nationality as German.On four occasions he has been refused permission to send letters onthis matter to the Federal Minister of Justice. On 23rd October 1961he was, however, as stated above, granted permission to complain to theDistrict Administrative President of C who was stated by the prisonauthorities to be the competent authority. His letter was, however, notdispatched until 2nd January 1962 and, on 10th January 1962, theApplicant was informed that the President was not competent and eightdays later his complaint was rejected by the Public Prosecutor of F,who thereby confirmed his previous decision of 8th June 1961. Otherattempts to obtain prosecutions against responsible authorities werealso unsuccessful.In respect of these allegations, the Respondent Government, in itsobservations of 24th May 1963, submitted that, when the Applicant wascommitted to prison in August 1959, his passport was taken away fromhim for safe keeping. After he had succeeded in escaping from prisonin 1960, his passport was handed to the police of E in order tofacilitate the search for him. He was in no way prevented fromsubsequently addressing complaints to the competent authorities and heconducted, indeed, a voluminous correspondence on the subject. In aletter of 28th January 1961, the Chief of Police of E admitted that hispassport, which was invalid, had been lost but that, in accordance withthe new international provisions, X will receive a new passport. Thenew passport will be issued to X at the place where he settles afterhis release. Should he take up residence in the Federal Republic, everyGerman Aliens Office is competent to issue a passport.The inquiries made in the matter as a result of the Applicant'scomplaints were discontinued as it was not possible to establish proofof any criminal act on the part of the authorities.It was officially acknowledged, on the cover of his personal file, andin the papers dealing with his admission to prison that he was aLithuanian and not a German subject.In respect of all the above allegations, the Respondent Governmentsubmitted that the Applicant had not availed himself of the remediesopen to him under Articles 23 et seq. of the Introductory Law to theLaw on Constitution of Courts of 27th January 1877 as amended on 21stJanuary 1960.Claims made by the ApplicantWhereas the Applicant alleges violations of the Articles mentionedabove and asks for the cessation of inhuman and brutal treatment in theprison in which he is detained, proper medical treatment, dispatch ofthe suppressed letters and restitution of his passport.THE LAWWhereas, in respect of the alleged violations of Article 3 (Art. 3) ofthe Convention, the Commission has taken note of the medical evidencesubmitted by the Respondent Government to the effect that the Applicantdoes not suffer from an active tuberculosis and that no special medicaltreatment was required; whereas the Commission has also taken note ofthe statement made by the prison doctor that the Applicant's healthwould in no way be impaired by his serving the disciplinary sentenceimposed upon him resulting from his refusal to carry out the workassigned to him; whereas, in these circumstances, the Commission findsthat the treatment to which the Applicant was subjected during hisdetention in prison and, in particular, the above punishment, do notin any way constitute inhuman or degrading treatment within the meaningof Article 3 (Art. 3) of the Convention; whereas, therefore, in regardto these complaints, an examination of the case is it has beensubmitted by the Parties does not disclose any appearance of aviolation of this Article of the Convention; whereas it follows thatthis part of the Application is manifestly ill-founded and must berejected in accordance with Article 27, paragraph (2) (Art. 27-2) ofthe Convention;Whereas, in respect of the alleged violation of Articles 8 and 10(Art. 8, 10) of the Convention, the Commission has taken note of thefact that in general the Applicant appears to have been able to carryon a regular and, indeed, voluminous correspondence with variousauthorities in regard to his complaints against the Prisonadministration; whereas it is true that on several occasions thedirector of the prison in which the Applicant was detained, withheld,in pursuance of valid prison regulations, letters written by theApplicant on the ground that they contained statements and accusationswhich, after enquiry, proved devoid of foundation; whereas it appearsthat at least on one occasion the Applicant was given the possibilityof rewriting the letter which had been withheld, but refused to do so;Whereas, in any event, it should be noted that although Article 8(Art. 8) of the Convention in its first paragraph provides thateveryone has the right to respect for his correspondence, and Article10 in its first paragraph (Art. 10-1) guarantees to everyone the rightto freedom of expression, paragraph (2) of each of these Articles(Art. 8-2, 10-2) authorised interference by a public authority with theexercise of these rights if such interference is in accordance with thelaw and is necessary in a democratic society, inter alia, for theprotection of the rights and freedoms of others and the reputation ofothers; whereas, in respect of Article 8 (Art. 8), the Commissionrefers to its decision on the admissibility of Application Number793/60 (H. v. Belgium - Yearbook III, page 444);Whereas, in cases in which the rights guaranteed in Articles 8(Art. 8) and/or 10 (Art. 10) are at issue, the Commission has theright, and indeed the duty, to appreciate whether or not interferenceby a public authority fulfils the conditions laid down in paragraph (2)of these Articles (Art. 8-2, 10-2) whereas the Commission hasfrequently held (see Application Number 753/60 (E. v. Austria - ibidempage 312)) that these Articles leave the Contracting Parties a certainmargin of appreciation in determining the limits that may be placed onthe exercise of the rights in question;Whereas, in the present case, it appears that the letters withheld bythe prison administration contained statements and accusations againstthird persons which, after a careful enquiry, proved groundless;Whereas the action taken by the prison authorities was based upon validprison regulations and obviously taken in pursuance of aims recognisedas legitimate under the paragraphs (2) of the Articles mentioned(Art. 8-2, 10-2); whereas, an examination of the submissions of theParties does not show that the interference with the Applicant's rightto freedom of correspondence or of expression was in any way an abuseof the Respondent Government's right to impose such limitations or hadbeen carried out in a manner contrary to the Convention;Whereas, in particular, with respect to the Applicant's correspondencewith the Secretariat of the Commission, the Commission has consideredthis question in relation to Article 25 (Art. 25) of the Convention;whereas it has noted with satisfaction that, independently of thepresent Application, the Respondent Government has taken the initiativeof amending the above prison regulations so as to avoid in the futureany interference with applicants' right to address themselves to theCommission in its official languages; whereas, apart from thesuppression of the letter written on 23rd October 1961 in English, nofurther interference with the Applicant's correspondence seems to haveoccurred, and he has been able to bring his complaints fully before theCommission; whereas, on these grounds, and with particular regard tothe fact that on the above date the Applicant was informed that he wasauthorised to rewrite his Application in German, in which language theSecretariat is authorised to deal with correspondence, the Commissionfinds that an examination of the case as it has been submitted does notdisclose any appearance of a violation of the provisions of theConvention; whereas it follows that this part of the Application ismanifestly ill-founded and must be rejected in accordance with Article27, paragraph (2) (Art. 27-2) of the Convention;Whereas the same objection applies to the alleged violations ofArticles 13, 17, 26 and 60 (Art. 13, 17, 26, 60) of the Convention;Whereas, in respect of the alleged violation of Article 1 of the FirstProtocol (P1-1), the Commission has taken note of the contents of theletter of 28th January 1961 from the Chief of Police of E according towhich the Applicant, on his release from prison and application to anyAliens Office in Germany, will receive a new and valid passportrecognising his Lithuanian origin; whereas, consequently, thedisappearance of his old passport has not in any way been prejudicialto him or to the recognition of his status as a Lithuanian citizen;whereas it follows that an examination of the case as it has beensubmitted does not disclose any appearance of a violation of theConvention and, in particular, of Article 1 of the First Protocol(P1-1); whereas, therefore, this part of the Application is manifestlyill-founded and must be rejected in accordance with Article 27,paragraph (2) (Art. 27-2) of the Convention;Whereas, in these circumstances, the Commission does not consider itnecessary to examine the question whether or not the Applicant wasobliged to avail himself of the remedies offered to him under Germanlaw;Now therefore the Commission declares this Application INADMISSIBLE