هيثم الفقى
07-15-2009, 12:37 AM
K.H. v. the FEDERAL REPUBLIC OF GERMANY - 2004/63 [1966] ECHR 2 (24 May 1966)
THE FACTSWhereas the facts presented by the Applicant - excluding those whichrelate to the complaints already rejected by the Commission - may besummarised as follows:-----------------------------(1) A partial decision was given on 1 June 1965 but has not beenpublished.-----------------------------The Applicant is a German citizen, born in 1930 and at present detainedin 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 prisonofficers in the Tegel prison in Berlin and he describes the incidentas follows:After a dispute between him and a certain Mr. K., an official in theprison administration, in regard to the refusal of the prisonauthorities to forward a letter from the Applicant to the Landgericht,Mr. K. ordered him to be brought to an isolation cell. Following thisorder, his arms were twisted behind his back by the prison officers L.and H. while another prison officer S. hit him and jabbed him withkeys. He was then dragged along like an animal down the threestaircases to the solitary confinement cell. While in this cell, H.,S. and a third officer named ... entered, and he was pushed into acorner. Ludwig then choked him from behind so that he could hardlybreathe and S. hit him in the face so that his glasses fell on thestonefloor and were broken. O., H. and S. then secured him with chainsusing much brutality and violence. He was thrown on the floor and anold 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 thechain even tighter with the result that he had pains in his stomach andkidneys. He was then pulled up by his hair and handcuffed with equalbrutality. The handcuffs which were so tight that his hands becameswollen were tied to the chain which had already been fastened to hisbody. While he was tied up in such a way that he could hardly move forpain, K . hit his head with a truncheon. His teeth bled and havesubsequently remained loose. He lost consciousness and cannot say whatelse was done to him. When he regained consciousness, he was lying onthe floor and had horrible pains in his head, stomach, kidneys andteeth. He could no longer move his wrists because of the tighthandcuffs. In the afternoon of 29 October, he was taken from the cellwhere he had then been lying for 24 hours on the stone floor withoutcare or medical treatment.In his original submissions regarding this incident, the Applicantstated that he had tried to lodge several complaints regarding thealleged ill-treatment but that these complaints had all been returnedto him under some pretext. The further submissions by the Parties onthe question of exhaustion of domestic remedies are set out below.Proceedings before the CommissionWhereas the proceedings before the Commission may be summarised asfollows:On 1 June 1965, the Commission, while declaring other parts of thepresent Application inadmissible, decided, in accordance with Rule 45,paragraph 3 (b), of its Rules of Procedure, to give notice of theApplication, in so far as it related to the alleged ill-treatment, tothe Federal Government and to invite it to submit its observations inwriting 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 onadmissibility. The Applicant's reply to the Government's observationswas submitted by his lawyer in a pleading of 1 September 1965 and, inaddition, the Applicant himself submitted a number of letters to theCommission. On 10 December 1965, the Commission decided to hold anoral hearing in the case.Both Parties submitted further written pleadings, the Applicant'slawyer on 31 January 1966 and the Government on 4 February 1966.The oral hearing was held on 11 and 12 February 1966. Following thehearing, the Commission decided to adjourn its decision onadmissibility and, in the meanwhile, to ask the Government to providecertain further information and documents.The Government submitted further information and documents in twopleadings 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. TheCommission decided, however, on 24 May 1966 not to take note of thatstatement as it had been submitted after the closing of theGovernment's written pleadings.Submissions of the PartiesWhereas the submissions of the Parties may be summarised as follows:1. As to the question of the Applicant's withdrawal of his ApplicationThe Government has submitted on 4 February 1966 a photocopy of adocument which states as follows:"Berlin, 27 January 1964I hereby declare that I withdraw my submissions of 1 January 1964 tothe 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 tothe Commission. In the Government's opinion, this document seemed toshow that the Applicant had not been clear himself as to the effect ofhis Application and had not attached any great importance to it. On theother hand, the declaration of withdrawal was apparently also ofinterest in regard to the question whether the Applicant had exhausteddomestic remedies. The fact that he had even withdrawn his Applicationwith the Commission seemed to support the Government's submission thathe had not exhausted the domestic remedies (as to the Government'ssubmissions on exhaustion, see below). This declaration might alsoindicate that the Applicant himself had doubts as to whether theallegations made in his Application were well-founded.The Applicant's lawyer stated that it was not clear whether thedeclaration referred to by the Government concerned the incident of 28October 1963. The declaration might have concerned some othersubmissions which had remained in the files of the Berlin authorities.If, however, the declaration concerned the case of ill-treatment, theApplicant's own conduct showed that he did not intend to withdraw hiscomplaint, since, in fact, he had persistently pursued this case.Moreover, a withdrawal would not prevent the Commission from examiningthe case since the Commission's proceedings were not bound by formalconsiderations, their purpose being to examine the substance of thealleged facts.2. As to the question of exhaustion of domestic remedies (Article 26of the Convention)A. Legal remedies availableThe Government submitted that, in German law, the alleged acts byprison officers would constitute the offence of causing bodily harm inthe exercise of official duties (Körperverletzung im Amt). As this wasa criminal offence, the primary remedy at the Applicant's disposalwould be the lodging of a penal charge (Strafanzeige) with thecompetent Public Prosecutor (Staatsanwalt) and, if the PublicProsecutor decided to take no action, he could appeal to the SeniorPublic Prosecutor (Generalstaatsanwalt).If the Senior Public Prosecutor also decided not to institute criminalproceedings, he could avail himself of the "prosecution enforcementprocedure" (Anklageerzwingungsverfahren) provided for by Article 172of the Code of Criminal Procedure (Strafprozessordnung). This meantthat the Applicant could have lodged an application with the competentCourt of Appeal, in the present case, the Kammergericht in Berlin.In the Government's opinion, these proceedings would have constitutedthe principal remedies.The Government also referred to the possibility of lodging anapplication to the Kammergericht in accordance with Article 23 of theIntroductory Act to the Judicature Act (Einführungsgesetz zumGerichtsverfassungsgesetz) which provides for an administrative appealin regard to decisions and measures taken by the prison authorities.The Government further indicates the possibility of bringing civilproceedings against the Land Berlin in respect of malfeasance(Amtspflichtverletzung) by officers of justice. The right to bring suchproceedings 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. Proceedingsshould have been instituted before the Landgericht and the right coursefor the Applicant would have been to file an application for legal aidand for the appointment of a lawyer by the Court.The Government emphasised, however, that the principal remedy in thepresent case was a criminal charge lodged with the Public Prosecutor.The Applicant's lawyer contested the submission that criminalproceedings were the principal remedy in the present case. He statedthat an application under Article 23 of the Introductory Act to theJudicature Act was also a remedy which could be considered and, infact, it was up to any prisoner who had been ill-treated to decidewhich of these two remedies he wished to choose. If he chose anapplication under Article 23, he would not have to bring also acriminal charge.The Applicant's lawyer did not consider civil proceedings to be aneffective remedy in respect of alleged punishable acts, unless it hadfirst been established in criminal proceedings that an offence had beencommitted. The Courts would never grant legal aid unless this conditionwas satisfied.In regard to criminal proceedings, the Applicant's lawyer submittedthat the appeal from the Senior Public Prosecutor to the Court ofAppeal was not an effective remedy in cases of this kind. He consideredthat this remedy which had ben introduced by a 1951 amendment to theCode of Criminal Procedure was ineffective. The application to theCourt of Appeal must be signed by a lawyer. The appellant has thepossibility of asking for legal aid but this is only granted if hisapplication is considered to offer some prospect of success and thiswould certainly not be the case after two Public Prosecutors hadrejected the charge. The most serious difficulty was, however, that nolawyer could be found who would be willing to assist an applicant insuch proceedings. No lawyer would sign an application for theprosecution of prison officers with whom he inevitably had constantdealings. There was a system according to which, in cases of this kind,one generally turned to a lawyer practising on another circuit but, inthe present case the Applicant would not have been technically able toestablish contact with such a lawyer. It would have been impossible forhim to find a lawyer who dealt with criminal cases in another town andwho was prepared to represent him before the Kammergericht. It was truethat there existed a possibility to have an "emergency lawyer"(Notanwalt) appointed. This meant that, if there was no qualifiedbarrister on the Court circuit who was willing to accept a case, thePresiding Judge of the Court could appoint a lawyer to take up thecase. But current jurisprudence - which, however, was in dispute - didnot allow the appointment of an "emergency lawyer" in the "prosecutionenforcement procedure". Moreover, if an application was lodged with theCourt of Appeal, the chance of success would be insignificant (lessthan one per thousand) when two Public Prosecutors had already rejectedthe charge.The Applicant's lawyer added that, on principle, he himself refused torepresent his clients in such proceedings before the Kammergerichtsince, in any case, they offered no chance of success. He did notremember whether the Applicant had asked him to assist him inproceedings before the Kammergericht but thought it possible that hehad done so. If so, the Applicant's lawyer had certainly refused toassist 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 ofSchwarz-Kleinknecht on the Code of Criminal Procedure. In thiscommentary there are references to a number of decisions by Courts ofAppeal in regard to Article 172 of the Code of Criminal Procedure. TheGovernment also referred to certain decisions by which applicationsunder Article 172 had been granted. Moreover, if the Applicant wasunable, for lack of funds or any other reason, to find a lawyer to takesuch an appeal in hand within a month, he had the possibility,according to Article 299 of the Code of Criminal Procedure, to placethis fact on the record of the Amtsgericht, and this would constitutea due observance of the time-limit. It was not understandable on whatground the Applicant's lawyer believed that no lawyer would have beenwilling to assist the Applicant in these proceedings, unless theirrefusal would be due to the fact that they did not take seriously theidea of pursuing such a charge. In any case, it had not been shown thatthe 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 beenrefused since, if legal aid was granted, a counsel would also beassigned ex officio.B. Implementation of the legal remedies available(a) The Applicant stated that, on 10 November 1963, he handed over tothe prison authorities a letter addressed to the Landgericht andcontaining a complaint concerning the incident of 28 October 1963. Headded that he received no reply to that letter.The Government's representative submitted, at the oral hearing, thata letter from the Applicant to the Landgericht had been sent from theprison on 15 November 1963 but that no further information wasavailable in regard to the fate of that letter.Subsequently, the Government, at the Commission's request, made furtherinvestigations but informed the Commission that the result had beennegative. No letter of November 1963 had been traced, and theGovernment referred to the following statement made in this regard bythe Berlin Senator for Justice: "There is a possibility that the letterof 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 wasthen returned to him".The Applicant's lawyer submitted that, in view of the Government'sfailure to trace the letter concerned, it had to be assumed, for thepurposes of the present Application, that the Applicant, by sendingthis letter, had complied with Article 26 of the Convention.(b) The Government, while referring to a statement by the BerlinSenator for Justice, informed the Commission that, on 27 January 1964the Applicant sent to the Senator a letter in which he described theincident of 28 October 1963 as he saw it. He withdrew this letter bya declaration of 3 March 1964 and it was therefore taken to his prisonrecord.(c) The Government also informed the Commission that on 11 September1964 the Applicant submitted to the Public Prosecutor at theLandgericht a charge (Strafanzeige) in respect of the allegedill-treatment; that, on 26 October 1964 the Public Prosecutor at theLandgericht decided to discontinue the proceedings in respect of thatcharge, since the investigation had shown that the prison officersconcerned had acted in the exercise of their official duties; that, on14 November 1964 the Applicant appealed from that decision; and thatthis appeal was rejected on 26 November 1964 by the Senior PublicProsecutor at the Kammergericht; that, in his decision, the SeniorPublic Prosecutor indicated that there was a further appeal to theKammergericht; that, however, the Applicant failed to avail himself ofthat remedy.The Government also mentioned that the Applicant complained of the sameincident in a letter of 14 October 1964 to the Senior Public Prosecutorat the Kammergericht; that this letter was transferred, on 2 November1964 to the Public Prosecutor at the Landgericht; and that, on 15 March1965 the Public Prosecutor informed the Applicant that his allegationshad already been examined in connection with the previous proceedingsand that therefore the Public Prosecutor did not find any furtheraction required.The Government has also submitted the files of the Public Prosecutorin regard to the Applicant's complaint. It appears from these filesthat, after receiving the Applicant's charge of 11 September 1964 thePublic Prosecutor transmitted the complaint to the Prison Director(Vorstand der Strafanstalt Tegel) on 6 October 1964 asking him tosubmit the comments of the prison officers concerned.On 14 October 1964 the Prison Director replied by referring to aprevious statement of 4 August 1964 regarding the same incident. Inthis statement of 4 August 1964, the Prison Director had stated, inparticular, that on 28 October 1963 the Applicant had committed aserious breach of prison discipline; that he had shown activeresistance against the prison officer O. and had bitten another prisonofficer's hand; and that his resistance had been broken with twostrokes of a truncheon. In this respect, the Prison Director referredto a short statement by O. dated 7 November 1963. He added that theApplicant had withdrawn his complaints regarding this incident. ThePrison Director also submitted a statement by a psychiatrist on theApplicant's mental condition.The contents of these files do not show that any further investigationswere made by the prosecuting authorities.The Government has also submitted the Applicant's medical recordrelating to his period of detention. It appears from this record that,while in prison, the Applicant has been under almost continuous medicaltreatment. It seems, however, that he did not see the Prison Doctorbetween 28 October and 12 November 1963. On the latter date, theApplicant apparently complained of stomach pains and the doctor gavehim some tablets. There is no appearance of any medical examinationhaving been carried out in view of the Applicant's allegationsregarding ill-treatment. On 20 December 1963 the doctor has noted:"Loosening of teeth". Similar entries appear, however, even before 28October 1963 and in a certificate of 20 August 1965 it is stated thatthose symptoms result from a dental disease from which the Applicanthas been suffering for years.The Applicant's lawyer submitted that the Applicant had not lodged anapplication with the Kammergericht in the form required by Article 172of the Code of Criminal Procedure since it had not been possible forhim to find a lawyer willing to represent him (as to the details, seethe Applicant's lawyer's submissions as quoted above). He maintained,however, that the Applicant, without the assistance of a lawyer andconsequently not in the form required by German law, had applied to theKammergericht but he provided no details about such a petition by theApplicant.(d) The Applicant's lawyers submitted that the Applicant had lodged anapplication with the Kammergericht pursuant to Article 23 of theIntroductory Act to the Judicature Act, but he was unable to indicatethe date of this application or the decision, if any, which had beengiven by the Kammergericht.The Government contested that such an application had been lodged,since neither the Government nor the Applicant's lawyer had been ableto find any trace of such an Application.3. As to the substance of the complaintThe Government referred to the following statement by the BerlinSenator for Justice in regard to the incident concerned:"On 28 October 1963, the principal of House III of Tegel Prison had theApplicant brought before him at the central office of his house toquestion him on the letters which the Applicant had written. When askedby the principal if the letters should be forwarded, the Applicantreplied in an irritated and insolent manner something to this effect:'Of course, I wrote the letters in order that they should be despatchedand not for your waste-paper basket'. As a result of this, theApplicant was taken to an isolated cell (Absonderungszelle). While inthis cell (from about 10.30 a.m. to 13.45 p.m.) he raged and riotedcontinuously to such an extent that the quiet and order of the housewere considerably disturbed. For that reason his arms were eventuallytied to his body by three prison officers on orders of the houseguardian. While this was being done, he insulted the three officers bycalling them: 'SS-pigs, raters, blackguards, and gangsters'. Apart fromthat, he put up a strong fight when his hands were chained, therebywounding one of the officers by a scratch wound. Another officer hadhis hand bitten by the Applicant. In order to manage him and to preventfurther injury, the officers broke his resistance by two blows with atruncheon. On this occasion the Applicant's glasses were damaged. Afterbeing chained, the Applicant was taken to an isolated cell in House Iof the institution".The Government also referred to certain written statements made on 28October 1963 by the prison officers concerned.In subsequent submissions, the Government took the view that commentson the substance of the case were not required in view of itssubmission regarding the non-exhaustion of domestic remedies.The Applicant's lawyer referred to the Applicant's statement on theincident as set out above and added certain comments on theadministration of the Tegel Prison and on the situation of thedetainees in that prison in general.4. Conclusions of the PartiesThe Government requested that the Application should be declaredinadmissible for non-exhaustion of domestic remedies.The Applicant's lawyer submitted that the Applicant had exhausted thedomestic remedies and requested that the Application should be declaredadmissible.THE LAWWhereas the Government has submitted a declaration of 27 January 1964in which the Applicant states that he withdraws his submissions to theCouncil of Europe dated 1 January 1964; whereas the Applicant'scomplaint regarding the alleged ill-treatment on 28 October 1963 wasfirst submitted to the Commission by a letter dated 1 January 1964;Whereas, therefore, the Commission finds it clear that the declarationof withdrawal concerns the Applicant's complaint regarding the incidentof 28 October 1963;Whereas it has not been indicated to the Commission in whatcircumstances this declaration was signed by the Applicant; and whereasthere is some reason to doubt that this declaration was sincere sincethe Applicant has subsequently made it clear, on many occasions, thathe wished to pursue the proceedings before the Commission;Whereas, in regard to a declaration of withdrawal of an applicationmade before the Commission's decision on its admissibility, theCommission, in its decision to strike out the application concerned,has consistently included the following proviso: where "nul impératifd'ordre général, touchant aux exigences de la Convention ... nes'oppose à la radiation du rôle", i.e, where no reasons of a generalcharacter affecting the observance of the Convention necessitate afurther 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 submittedafter admissibility, the Commission found that the Applicationconcerned raised problems under the Convention which might extendbeyond the interests of the particular Applicants and decided, on thatground, to retain it in spite of their declaration of withdrawal (seeApplication No. 2294/64 X and Y against the Federal Republic ofGermany);Whereas the Commission finds that the present Application also raisesproblems under the Convention which may extend beyond the interests ofthe particular Applicant; and whereas, consequently, the Commissionconsiders that there are sufficient reasons to examine theadmissibility of the Application irrespective of the possible existenceof a declaration of withdrawal on the part of the Applicant;Whereas, accordingly, it is not necessary to examine the precisecircumstances in which the declaration was made by the Applicant or thefurther question whether the fact that the Applicant has since made itclear that he intends to pursue the proceedings could affect thevalidity of his previous declaration;Whereas Article 26 (Art. 26) of the Convention provides that theCommission may only deal with a matter after all domestic remedies havebeen exhausted, according to the generally recognised rules ofinternational law;Whereas the Respondent Government has submitted that the principalremedy available to the Applicant was the remedy by means of lodgingpenal proceedings (Strafanzeige) with the Public Prosecutor;Whereas the Commission observes that the Applicant complains ofill-treatment by prison officers and that the alleged acts constitutecriminal offenses in German law;Whereas, therefore, the Commission accepts the Government's submissionthat, in order to comply with Article 26 (Art. 26), the Applicant wasobliged to lodge a charge (Strafanzeige) with the competent PublicProsecutor and, in the case of refusal by the Public Prosecutor toinstitute criminal proceedings, to use all remedies available underGerman 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 tothe prison authorities a letter to be forwarded to the Landgericht;Whereas the Government has confirmed that a letter from the Applicantto the Landgericht was sent from the prison on 15 November 1963;Whereas, in spite of investigations having been made, the Governmenthas failed to obtain any further information as to the fate of thatletter;Whereas the Commission observes that the contents of the letter ofNovember 1963 are not known and that, moreover, the letter was not sentto the Public Prosecutor but to the Landgericht; whereas, consequently,the Commission does not find it possible to take this letter intoaccount as being an indication that the Applicant has exhausteddomestic remedies;Whereas it also appears that the Applicant complained of the incidentconcerned in a letter to the Senator of Justice dated 27 January 1964;Whereas this letter also was addressed to an authority other than thePublic Prosecutor and whereas it appears that the Applicant withdrewthis letter on 3 March 1964; whereas it follows that it cannot be takeninto consideration for the purpose of deciding whether the domesticremedies have been exhausted;Whereas it also appears that on 11 September 1964, the Applicantsubmitted a charge (Strafanzeige) to the Public Prosecutor at theLandgericht;Whereas, on 26 October 1964, the Public Prosecutor decided not toinstitute criminal proceedings; whereas, on 14 November 1964, theApplicant appealed from that decision;Whereas, on 26 November 1964 his appeal was rejected by the SeniorPublic Prosecutor at the Kammergericht;Whereas the Senior Public Prosector informed the Applicant that, inrespect of that decision, he could lodge an application for a judicialdecision with the Kammergericht;Whereas the Applicant has in no way shown that he availed himself ofthis possibility;Whereas the Applicant's lawyer has submitted that an application to theKammergericht was not to be considered as an effective remedy which hadto be exhausted under Article 26 (Art. 26) of the Convention;Whereas,in particular, he has stated that the Applicant would not havebeen able to find a lawyer willing to represent him in the proceedingsbefore the Kammergericht and that, moreover, the chance of success insuch proceedings would have been insignificant;Whereas the Commission considers that, in general, an applicationlodged in accordance with Article 172 of the Code of Criminal Proceduremust be considered as an effective and sufficient remedy which has tobe exhausted within the meaning of Article 26 (Art. 26) of theConvention;Whereas, in this respect, the Commission refers to its decision inregard to Application No. 1404/62 (Wiechert v. Federal Republic ofGermany, Yearbook VII, page 124 et seq.);Whereas, in regard to the circumstances of the present case, theCommission observes that the Applicant has submitted that it would havebeen impossible for him to find a lawyer willing to assist him, butthat, on the other hand, he has in no way shown that he made anyattempts to obtain the assistance of a lawyer in the proceedingsconcerned; and whereas, moreover, he has not shown that he applied tothe Kammergericht for legal aid in respect of these proceedings;Whereas the Commission finds no special circumstances which dispensedthe Applicant from exhausting this particular remedy;Whereas, consequently, in this particular respect, the Applicant hasnot exhausted the domestic remedies within the meaning of Article 26(Art. 26);Whereas, in those circumstances, the Commission does not find itnecessary to comment on the submissions of the Parties as to theexistence of other legal remedies in the present case.Now therefore the Commission declares this Application INADMISSIBLE.
THE FACTSWhereas the facts presented by the Applicant - excluding those whichrelate to the complaints already rejected by the Commission - may besummarised as follows:-----------------------------(1) A partial decision was given on 1 June 1965 but has not beenpublished.-----------------------------The Applicant is a German citizen, born in 1930 and at present detainedin 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 prisonofficers in the Tegel prison in Berlin and he describes the incidentas follows:After a dispute between him and a certain Mr. K., an official in theprison administration, in regard to the refusal of the prisonauthorities to forward a letter from the Applicant to the Landgericht,Mr. K. ordered him to be brought to an isolation cell. Following thisorder, his arms were twisted behind his back by the prison officers L.and H. while another prison officer S. hit him and jabbed him withkeys. He was then dragged along like an animal down the threestaircases to the solitary confinement cell. While in this cell, H.,S. and a third officer named ... entered, and he was pushed into acorner. Ludwig then choked him from behind so that he could hardlybreathe and S. hit him in the face so that his glasses fell on thestonefloor and were broken. O., H. and S. then secured him with chainsusing much brutality and violence. He was thrown on the floor and anold 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 thechain even tighter with the result that he had pains in his stomach andkidneys. He was then pulled up by his hair and handcuffed with equalbrutality. The handcuffs which were so tight that his hands becameswollen were tied to the chain which had already been fastened to hisbody. While he was tied up in such a way that he could hardly move forpain, K . hit his head with a truncheon. His teeth bled and havesubsequently remained loose. He lost consciousness and cannot say whatelse was done to him. When he regained consciousness, he was lying onthe floor and had horrible pains in his head, stomach, kidneys andteeth. He could no longer move his wrists because of the tighthandcuffs. In the afternoon of 29 October, he was taken from the cellwhere he had then been lying for 24 hours on the stone floor withoutcare or medical treatment.In his original submissions regarding this incident, the Applicantstated that he had tried to lodge several complaints regarding thealleged ill-treatment but that these complaints had all been returnedto him under some pretext. The further submissions by the Parties onthe question of exhaustion of domestic remedies are set out below.Proceedings before the CommissionWhereas the proceedings before the Commission may be summarised asfollows:On 1 June 1965, the Commission, while declaring other parts of thepresent Application inadmissible, decided, in accordance with Rule 45,paragraph 3 (b), of its Rules of Procedure, to give notice of theApplication, in so far as it related to the alleged ill-treatment, tothe Federal Government and to invite it to submit its observations inwriting 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 onadmissibility. The Applicant's reply to the Government's observationswas submitted by his lawyer in a pleading of 1 September 1965 and, inaddition, the Applicant himself submitted a number of letters to theCommission. On 10 December 1965, the Commission decided to hold anoral hearing in the case.Both Parties submitted further written pleadings, the Applicant'slawyer on 31 January 1966 and the Government on 4 February 1966.The oral hearing was held on 11 and 12 February 1966. Following thehearing, the Commission decided to adjourn its decision onadmissibility and, in the meanwhile, to ask the Government to providecertain further information and documents.The Government submitted further information and documents in twopleadings 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. TheCommission decided, however, on 24 May 1966 not to take note of thatstatement as it had been submitted after the closing of theGovernment's written pleadings.Submissions of the PartiesWhereas the submissions of the Parties may be summarised as follows:1. As to the question of the Applicant's withdrawal of his ApplicationThe Government has submitted on 4 February 1966 a photocopy of adocument which states as follows:"Berlin, 27 January 1964I hereby declare that I withdraw my submissions of 1 January 1964 tothe 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 tothe Commission. In the Government's opinion, this document seemed toshow that the Applicant had not been clear himself as to the effect ofhis Application and had not attached any great importance to it. On theother hand, the declaration of withdrawal was apparently also ofinterest in regard to the question whether the Applicant had exhausteddomestic remedies. The fact that he had even withdrawn his Applicationwith the Commission seemed to support the Government's submission thathe had not exhausted the domestic remedies (as to the Government'ssubmissions on exhaustion, see below). This declaration might alsoindicate that the Applicant himself had doubts as to whether theallegations made in his Application were well-founded.The Applicant's lawyer stated that it was not clear whether thedeclaration referred to by the Government concerned the incident of 28October 1963. The declaration might have concerned some othersubmissions which had remained in the files of the Berlin authorities.If, however, the declaration concerned the case of ill-treatment, theApplicant's own conduct showed that he did not intend to withdraw hiscomplaint, since, in fact, he had persistently pursued this case.Moreover, a withdrawal would not prevent the Commission from examiningthe case since the Commission's proceedings were not bound by formalconsiderations, their purpose being to examine the substance of thealleged facts.2. As to the question of exhaustion of domestic remedies (Article 26of the Convention)A. Legal remedies availableThe Government submitted that, in German law, the alleged acts byprison officers would constitute the offence of causing bodily harm inthe exercise of official duties (Körperverletzung im Amt). As this wasa criminal offence, the primary remedy at the Applicant's disposalwould be the lodging of a penal charge (Strafanzeige) with thecompetent Public Prosecutor (Staatsanwalt) and, if the PublicProsecutor decided to take no action, he could appeal to the SeniorPublic Prosecutor (Generalstaatsanwalt).If the Senior Public Prosecutor also decided not to institute criminalproceedings, he could avail himself of the "prosecution enforcementprocedure" (Anklageerzwingungsverfahren) provided for by Article 172of the Code of Criminal Procedure (Strafprozessordnung). This meantthat the Applicant could have lodged an application with the competentCourt of Appeal, in the present case, the Kammergericht in Berlin.In the Government's opinion, these proceedings would have constitutedthe principal remedies.The Government also referred to the possibility of lodging anapplication to the Kammergericht in accordance with Article 23 of theIntroductory Act to the Judicature Act (Einführungsgesetz zumGerichtsverfassungsgesetz) which provides for an administrative appealin regard to decisions and measures taken by the prison authorities.The Government further indicates the possibility of bringing civilproceedings against the Land Berlin in respect of malfeasance(Amtspflichtverletzung) by officers of justice. The right to bring suchproceedings 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. Proceedingsshould have been instituted before the Landgericht and the right coursefor the Applicant would have been to file an application for legal aidand for the appointment of a lawyer by the Court.The Government emphasised, however, that the principal remedy in thepresent case was a criminal charge lodged with the Public Prosecutor.The Applicant's lawyer contested the submission that criminalproceedings were the principal remedy in the present case. He statedthat an application under Article 23 of the Introductory Act to theJudicature Act was also a remedy which could be considered and, infact, it was up to any prisoner who had been ill-treated to decidewhich of these two remedies he wished to choose. If he chose anapplication under Article 23, he would not have to bring also acriminal charge.The Applicant's lawyer did not consider civil proceedings to be aneffective remedy in respect of alleged punishable acts, unless it hadfirst been established in criminal proceedings that an offence had beencommitted. The Courts would never grant legal aid unless this conditionwas satisfied.In regard to criminal proceedings, the Applicant's lawyer submittedthat the appeal from the Senior Public Prosecutor to the Court ofAppeal was not an effective remedy in cases of this kind. He consideredthat this remedy which had ben introduced by a 1951 amendment to theCode of Criminal Procedure was ineffective. The application to theCourt of Appeal must be signed by a lawyer. The appellant has thepossibility of asking for legal aid but this is only granted if hisapplication is considered to offer some prospect of success and thiswould certainly not be the case after two Public Prosecutors hadrejected the charge. The most serious difficulty was, however, that nolawyer could be found who would be willing to assist an applicant insuch proceedings. No lawyer would sign an application for theprosecution of prison officers with whom he inevitably had constantdealings. There was a system according to which, in cases of this kind,one generally turned to a lawyer practising on another circuit but, inthe present case the Applicant would not have been technically able toestablish contact with such a lawyer. It would have been impossible forhim to find a lawyer who dealt with criminal cases in another town andwho was prepared to represent him before the Kammergericht. It was truethat there existed a possibility to have an "emergency lawyer"(Notanwalt) appointed. This meant that, if there was no qualifiedbarrister on the Court circuit who was willing to accept a case, thePresiding Judge of the Court could appoint a lawyer to take up thecase. But current jurisprudence - which, however, was in dispute - didnot allow the appointment of an "emergency lawyer" in the "prosecutionenforcement procedure". Moreover, if an application was lodged with theCourt of Appeal, the chance of success would be insignificant (lessthan one per thousand) when two Public Prosecutors had already rejectedthe charge.The Applicant's lawyer added that, on principle, he himself refused torepresent his clients in such proceedings before the Kammergerichtsince, in any case, they offered no chance of success. He did notremember whether the Applicant had asked him to assist him inproceedings before the Kammergericht but thought it possible that hehad done so. If so, the Applicant's lawyer had certainly refused toassist 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 ofSchwarz-Kleinknecht on the Code of Criminal Procedure. In thiscommentary there are references to a number of decisions by Courts ofAppeal in regard to Article 172 of the Code of Criminal Procedure. TheGovernment also referred to certain decisions by which applicationsunder Article 172 had been granted. Moreover, if the Applicant wasunable, for lack of funds or any other reason, to find a lawyer to takesuch an appeal in hand within a month, he had the possibility,according to Article 299 of the Code of Criminal Procedure, to placethis fact on the record of the Amtsgericht, and this would constitutea due observance of the time-limit. It was not understandable on whatground the Applicant's lawyer believed that no lawyer would have beenwilling to assist the Applicant in these proceedings, unless theirrefusal would be due to the fact that they did not take seriously theidea of pursuing such a charge. In any case, it had not been shown thatthe 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 beenrefused since, if legal aid was granted, a counsel would also beassigned ex officio.B. Implementation of the legal remedies available(a) The Applicant stated that, on 10 November 1963, he handed over tothe prison authorities a letter addressed to the Landgericht andcontaining a complaint concerning the incident of 28 October 1963. Headded that he received no reply to that letter.The Government's representative submitted, at the oral hearing, thata letter from the Applicant to the Landgericht had been sent from theprison on 15 November 1963 but that no further information wasavailable in regard to the fate of that letter.Subsequently, the Government, at the Commission's request, made furtherinvestigations but informed the Commission that the result had beennegative. No letter of November 1963 had been traced, and theGovernment referred to the following statement made in this regard bythe Berlin Senator for Justice: "There is a possibility that the letterof 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 wasthen returned to him".The Applicant's lawyer submitted that, in view of the Government'sfailure to trace the letter concerned, it had to be assumed, for thepurposes of the present Application, that the Applicant, by sendingthis letter, had complied with Article 26 of the Convention.(b) The Government, while referring to a statement by the BerlinSenator for Justice, informed the Commission that, on 27 January 1964the Applicant sent to the Senator a letter in which he described theincident of 28 October 1963 as he saw it. He withdrew this letter bya declaration of 3 March 1964 and it was therefore taken to his prisonrecord.(c) The Government also informed the Commission that on 11 September1964 the Applicant submitted to the Public Prosecutor at theLandgericht a charge (Strafanzeige) in respect of the allegedill-treatment; that, on 26 October 1964 the Public Prosecutor at theLandgericht decided to discontinue the proceedings in respect of thatcharge, since the investigation had shown that the prison officersconcerned had acted in the exercise of their official duties; that, on14 November 1964 the Applicant appealed from that decision; and thatthis appeal was rejected on 26 November 1964 by the Senior PublicProsecutor at the Kammergericht; that, in his decision, the SeniorPublic Prosecutor indicated that there was a further appeal to theKammergericht; that, however, the Applicant failed to avail himself ofthat remedy.The Government also mentioned that the Applicant complained of the sameincident in a letter of 14 October 1964 to the Senior Public Prosecutorat the Kammergericht; that this letter was transferred, on 2 November1964 to the Public Prosecutor at the Landgericht; and that, on 15 March1965 the Public Prosecutor informed the Applicant that his allegationshad already been examined in connection with the previous proceedingsand that therefore the Public Prosecutor did not find any furtheraction required.The Government has also submitted the files of the Public Prosecutorin regard to the Applicant's complaint. It appears from these filesthat, after receiving the Applicant's charge of 11 September 1964 thePublic Prosecutor transmitted the complaint to the Prison Director(Vorstand der Strafanstalt Tegel) on 6 October 1964 asking him tosubmit the comments of the prison officers concerned.On 14 October 1964 the Prison Director replied by referring to aprevious statement of 4 August 1964 regarding the same incident. Inthis statement of 4 August 1964, the Prison Director had stated, inparticular, that on 28 October 1963 the Applicant had committed aserious breach of prison discipline; that he had shown activeresistance against the prison officer O. and had bitten another prisonofficer's hand; and that his resistance had been broken with twostrokes of a truncheon. In this respect, the Prison Director referredto a short statement by O. dated 7 November 1963. He added that theApplicant had withdrawn his complaints regarding this incident. ThePrison Director also submitted a statement by a psychiatrist on theApplicant's mental condition.The contents of these files do not show that any further investigationswere made by the prosecuting authorities.The Government has also submitted the Applicant's medical recordrelating to his period of detention. It appears from this record that,while in prison, the Applicant has been under almost continuous medicaltreatment. It seems, however, that he did not see the Prison Doctorbetween 28 October and 12 November 1963. On the latter date, theApplicant apparently complained of stomach pains and the doctor gavehim some tablets. There is no appearance of any medical examinationhaving been carried out in view of the Applicant's allegationsregarding ill-treatment. On 20 December 1963 the doctor has noted:"Loosening of teeth". Similar entries appear, however, even before 28October 1963 and in a certificate of 20 August 1965 it is stated thatthose symptoms result from a dental disease from which the Applicanthas been suffering for years.The Applicant's lawyer submitted that the Applicant had not lodged anapplication with the Kammergericht in the form required by Article 172of the Code of Criminal Procedure since it had not been possible forhim to find a lawyer willing to represent him (as to the details, seethe Applicant's lawyer's submissions as quoted above). He maintained,however, that the Applicant, without the assistance of a lawyer andconsequently not in the form required by German law, had applied to theKammergericht but he provided no details about such a petition by theApplicant.(d) The Applicant's lawyers submitted that the Applicant had lodged anapplication with the Kammergericht pursuant to Article 23 of theIntroductory Act to the Judicature Act, but he was unable to indicatethe date of this application or the decision, if any, which had beengiven by the Kammergericht.The Government contested that such an application had been lodged,since neither the Government nor the Applicant's lawyer had been ableto find any trace of such an Application.3. As to the substance of the complaintThe Government referred to the following statement by the BerlinSenator for Justice in regard to the incident concerned:"On 28 October 1963, the principal of House III of Tegel Prison had theApplicant brought before him at the central office of his house toquestion him on the letters which the Applicant had written. When askedby the principal if the letters should be forwarded, the Applicantreplied in an irritated and insolent manner something to this effect:'Of course, I wrote the letters in order that they should be despatchedand not for your waste-paper basket'. As a result of this, theApplicant was taken to an isolated cell (Absonderungszelle). While inthis cell (from about 10.30 a.m. to 13.45 p.m.) he raged and riotedcontinuously to such an extent that the quiet and order of the housewere considerably disturbed. For that reason his arms were eventuallytied to his body by three prison officers on orders of the houseguardian. While this was being done, he insulted the three officers bycalling them: 'SS-pigs, raters, blackguards, and gangsters'. Apart fromthat, he put up a strong fight when his hands were chained, therebywounding one of the officers by a scratch wound. Another officer hadhis hand bitten by the Applicant. In order to manage him and to preventfurther injury, the officers broke his resistance by two blows with atruncheon. On this occasion the Applicant's glasses were damaged. Afterbeing chained, the Applicant was taken to an isolated cell in House Iof the institution".The Government also referred to certain written statements made on 28October 1963 by the prison officers concerned.In subsequent submissions, the Government took the view that commentson the substance of the case were not required in view of itssubmission regarding the non-exhaustion of domestic remedies.The Applicant's lawyer referred to the Applicant's statement on theincident as set out above and added certain comments on theadministration of the Tegel Prison and on the situation of thedetainees in that prison in general.4. Conclusions of the PartiesThe Government requested that the Application should be declaredinadmissible for non-exhaustion of domestic remedies.The Applicant's lawyer submitted that the Applicant had exhausted thedomestic remedies and requested that the Application should be declaredadmissible.THE LAWWhereas the Government has submitted a declaration of 27 January 1964in which the Applicant states that he withdraws his submissions to theCouncil of Europe dated 1 January 1964; whereas the Applicant'scomplaint regarding the alleged ill-treatment on 28 October 1963 wasfirst submitted to the Commission by a letter dated 1 January 1964;Whereas, therefore, the Commission finds it clear that the declarationof withdrawal concerns the Applicant's complaint regarding the incidentof 28 October 1963;Whereas it has not been indicated to the Commission in whatcircumstances this declaration was signed by the Applicant; and whereasthere is some reason to doubt that this declaration was sincere sincethe Applicant has subsequently made it clear, on many occasions, thathe wished to pursue the proceedings before the Commission;Whereas, in regard to a declaration of withdrawal of an applicationmade before the Commission's decision on its admissibility, theCommission, in its decision to strike out the application concerned,has consistently included the following proviso: where "nul impératifd'ordre général, touchant aux exigences de la Convention ... nes'oppose à la radiation du rôle", i.e, where no reasons of a generalcharacter affecting the observance of the Convention necessitate afurther 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 submittedafter admissibility, the Commission found that the Applicationconcerned raised problems under the Convention which might extendbeyond the interests of the particular Applicants and decided, on thatground, to retain it in spite of their declaration of withdrawal (seeApplication No. 2294/64 X and Y against the Federal Republic ofGermany);Whereas the Commission finds that the present Application also raisesproblems under the Convention which may extend beyond the interests ofthe particular Applicant; and whereas, consequently, the Commissionconsiders that there are sufficient reasons to examine theadmissibility of the Application irrespective of the possible existenceof a declaration of withdrawal on the part of the Applicant;Whereas, accordingly, it is not necessary to examine the precisecircumstances in which the declaration was made by the Applicant or thefurther question whether the fact that the Applicant has since made itclear that he intends to pursue the proceedings could affect thevalidity of his previous declaration;Whereas Article 26 (Art. 26) of the Convention provides that theCommission may only deal with a matter after all domestic remedies havebeen exhausted, according to the generally recognised rules ofinternational law;Whereas the Respondent Government has submitted that the principalremedy available to the Applicant was the remedy by means of lodgingpenal proceedings (Strafanzeige) with the Public Prosecutor;Whereas the Commission observes that the Applicant complains ofill-treatment by prison officers and that the alleged acts constitutecriminal offenses in German law;Whereas, therefore, the Commission accepts the Government's submissionthat, in order to comply with Article 26 (Art. 26), the Applicant wasobliged to lodge a charge (Strafanzeige) with the competent PublicProsecutor and, in the case of refusal by the Public Prosecutor toinstitute criminal proceedings, to use all remedies available underGerman 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 tothe prison authorities a letter to be forwarded to the Landgericht;Whereas the Government has confirmed that a letter from the Applicantto the Landgericht was sent from the prison on 15 November 1963;Whereas, in spite of investigations having been made, the Governmenthas failed to obtain any further information as to the fate of thatletter;Whereas the Commission observes that the contents of the letter ofNovember 1963 are not known and that, moreover, the letter was not sentto the Public Prosecutor but to the Landgericht; whereas, consequently,the Commission does not find it possible to take this letter intoaccount as being an indication that the Applicant has exhausteddomestic remedies;Whereas it also appears that the Applicant complained of the incidentconcerned in a letter to the Senator of Justice dated 27 January 1964;Whereas this letter also was addressed to an authority other than thePublic Prosecutor and whereas it appears that the Applicant withdrewthis letter on 3 March 1964; whereas it follows that it cannot be takeninto consideration for the purpose of deciding whether the domesticremedies have been exhausted;Whereas it also appears that on 11 September 1964, the Applicantsubmitted a charge (Strafanzeige) to the Public Prosecutor at theLandgericht;Whereas, on 26 October 1964, the Public Prosecutor decided not toinstitute criminal proceedings; whereas, on 14 November 1964, theApplicant appealed from that decision;Whereas, on 26 November 1964 his appeal was rejected by the SeniorPublic Prosecutor at the Kammergericht;Whereas the Senior Public Prosector informed the Applicant that, inrespect of that decision, he could lodge an application for a judicialdecision with the Kammergericht;Whereas the Applicant has in no way shown that he availed himself ofthis possibility;Whereas the Applicant's lawyer has submitted that an application to theKammergericht was not to be considered as an effective remedy which hadto be exhausted under Article 26 (Art. 26) of the Convention;Whereas,in particular, he has stated that the Applicant would not havebeen able to find a lawyer willing to represent him in the proceedingsbefore the Kammergericht and that, moreover, the chance of success insuch proceedings would have been insignificant;Whereas the Commission considers that, in general, an applicationlodged in accordance with Article 172 of the Code of Criminal Proceduremust be considered as an effective and sufficient remedy which has tobe exhausted within the meaning of Article 26 (Art. 26) of theConvention;Whereas, in this respect, the Commission refers to its decision inregard to Application No. 1404/62 (Wiechert v. Federal Republic ofGermany, Yearbook VII, page 124 et seq.);Whereas, in regard to the circumstances of the present case, theCommission observes that the Applicant has submitted that it would havebeen impossible for him to find a lawyer willing to assist him, butthat, on the other hand, he has in no way shown that he made anyattempts to obtain the assistance of a lawyer in the proceedingsconcerned; and whereas, moreover, he has not shown that he applied tothe Kammergericht for legal aid in respect of these proceedings;Whereas the Commission finds no special circumstances which dispensedthe Applicant from exhausting this particular remedy;Whereas, consequently, in this particular respect, the Applicant hasnot exhausted the domestic remedies within the meaning of Article 26(Art. 26);Whereas, in those circumstances, the Commission does not find itnecessary to comment on the submissions of the Parties as to theexistence of other legal remedies in the present case.Now therefore the Commission declares this Application INADMISSIBLE.