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07-15-2009, 12:45 AM
H.K. v. THE FEDERAL REPUBLIC OF GERMANY - 2686/65 [1966] ECHR 7 (13 December 1966)
THE FACTSWhereas the facts presented by the Applicant, excluding those whichrelate to the complaints already rejected by the Commission, may besummarised as follows:The Applicant is a German citizen, born in 1930 and at present detainedin the Tegel prison in Berlin. He is represented before the Commissionby Mr. Hasso Fügart, a lawyer practising in Berlin.A previous Application (No. 2004/63) lodged by the same Applicant wasdeclared inadmissible by decisions of 1st June, 1965 and 24th May, 1966(2).The Applicant now alleges that he was ill-treated by prison officersin the Tegel prison on 4th September, 1965. He states that on that day,when on his way back from the prison hospital, he had a dispute witha prison officer named H who finally attacked him. He received blowson his ribs and was choked from behind. Another prison officer, K,twisted his left arm and he was dragged to a place where a thirdofficer named M, assisted the other two in assaulting him. He was thentaken to an isolation cell where later he tried unsuccessfully toexplain the situation to a prison officer, O. After O had left thecell, H entered and threatened him ("Du hast Glück, dass wir nichtallein sind, sonst würde ich Dich Schwein schon klein kriegen").---------------------------------------------------------------------(1) A partial decision by the Commission on 16th December, 1965,declaring part of the Application inadmissible has not been published.(2) See Collection of Decisions, Volume 20, page 40.---------------------------------------------------------------------After some time, Kornmann was ordered to leave the cell and was takento another cell ("Spülzelle") where he was told to undress. He askedto be allowed to speak to one of the superiors in the prison but wasnot allowed to do so. H. wished to take off Kornmann's clothes by forceafter Kornmann had asked for the reason for the treatment to which hewas being subjected. Someone then proposed to take Kornmann to thecellar of House I ("da werden wir mit ihm schon fertig"). His arms wereagain twisted and he was pushed and taken to this cellar where he wasforced to undress and H again threatened him. Kornmann again statedthat he wished to see one of the superiors but he was knocked down,kicked, pushed about and pulled by his hair and one of the officersasked for a truncheon; his chest and back were trodden on by prisonofficers and with the use of much brutality a metal band was tied roundhis body.He was then handcuffed so tightly that his hands were swollen as thecirculation of his blood was hindered. After about one hour anotherprison officer relieved him of his fetters but he was not allowed tosee the Inspector or the prison doctor and, in his submission, this wasapparently refused because he had still marks of ill-treatment.Kornmann stated that, when writing his letter (on 4th September, 1965),he still had pains and difficulty in breathing as results of thisill-treatment in the cellar and of the fact that the prison officershad trodden on his stomach and back.Proceedings before the CommissionWhereas the proceedings before the Commission may be summarised asfollows:The present Application was lodged on 4th September, 1965, and wasregistered on 10th December, 1965. The Application concerned not onlythe alleged incident of ill-treatment but also a number of otherallegations.On 16th December, 1965, the Commission decided to declare theApplication inadmissible except in regard to the alleged ill-treatment.The Commission further decided that, in respect of this allegation, theParties should be asked to make oral explanations of the admissibilityat the hearing which was to be held in regard to Application No.2004/63, also lodged by Kornmann.The oral hearing, for which the Applicant was granted legal aid by theCommission, was held on 11th and 12th February, 1966. Following thehearing, the Commission decided to adjourn its decision onadmissibility and, in the meanwhile, to ask the Government to providefurther information on certain points and to submit certain documents.On 18th April, 1966, the Government submitted its further writtenobservations and the Applicant's lawyer replied on 6th May, 1966. TheGovernment also submitted additional pleadings on 9th and 20th May,1966.On 24th May, 1966, the Commission decided(a) not to take notice of the Government's pleading of 20th May, 1966,as it had arrived after the pleadings had been closed;(b) to adjourn its decision on the admissibility of the Applicationpending the outcome of certain proceedings in Berlin.On 17th June, 1966, the President of the Commission decided that apassage of the Government's pleading of 20th May, 1966 should becommunicated to the Applicant's lawyer and a reply was submitted by himon 6th July, 1966.After being informed by the Applicant's lawyer about the progress ofthe proceedings in Berlin, the Commission decided, on 4th October,1966, to invite the Government to submit further observations oncertain aspects of the case.The Government submitted a pleading on 8th November, 1966 and theApplicant's lawyer did not submit any reply within the time-limit fixedby the Commission.Applications for adjournment on different grounds were submitted byboth Parties and were rejected by the Commission on 4th October and13th December, 1966.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 submitted on 4th February, 1966 a copy of a documentstating as follows:"Berlin 27, 8th October, 1965, Seidelstrasse 39DeclarationI consider my petition of 4th September, 1965 to the Council of Europe,Strasbourg, as settled and hereby withdraw it.Heinz Kornmann."The Government further explained that this declaration had, by mistake,been filed with the Berlin authorities instead of being at onceforwarded to the Commission. In the Government's opinion, this documentseemed to show that the Applicant had not been clear himself as to theeffect of his Application and had not attached any great importance toit. On the other hand, the declaration of withdrawal was apparentlyalso of interest in regard to the question whether the Applicant hadexhausted domestic remedies (this was stated at an early stage of theproceedings, when the Applicant had not yet availed himself of the"prosecution enforcement procedure" - Anklageerzwingungsverfahren -provided for in Article 172 of the Code of Criminal Procedure).According to the Government, the declaration of withdrawal might alsoindicate that the Applicant himself had doubts as to whether theallegations made in his Application were well-founded and,consequently, the declaration of withdrawal might also have somerelevance in the examination of the question as to whether theApplication was manifestly ill-founded.The Applicant's lawyer stated that it was not clear whether thedeclaration referred to by the Government concerned the incident of 4thSeptember, 1965. He submitted that the Applicant could hardly havecomplained of this ill-treatment by a petition dated 4th September,1965, being the same day on which he had been severely manhandled,transferred to a detention cell and punished by seven days' strictdetention. If, however, the declaration of withdrawal was shown toconcern the complaint as to his ill-treatment, the Applicant's lawyersubmitted that it had not been withdrawn of the Applicant's free will.In any event, the Applicant's own conduct showed that he did not intendto withdraw his complaint. Moreover, a withdrawal would not prevent theCommission from examining the case since the Commission's proceedingswere not bound by formal considerations their purpose being to examinethe substance of the alleged facts.2. As to the question of exhaustion of domestic remedies (Article 26of the Convention)The 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 criminal 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 in Article 172of the Code of Criminal Procedure (Strafprozessordnung). This procedureimplied that an application for a judicial decision could be lodgedwith the competent Court of Appeal which, in the case of Berlin, wasthe Kammergericht.The Government first submitted that the present Application wasinadmissible as the Applicant had not exhausted these remedies. Itpointed out that the Applicant had lodged a criminal charge on 11thSeptember, 1965 but that he had withdrawn this charge on 5th October,1965 and that, in view of his withdrawal, the Public Prosecutor at theLandgericht had decided to discontinue the proceedings.However, while the Application was pending before the Commission, thePublic Prosecutor decided on 4th April, 1966, to re-open theinvestigation ex officio. Following this new investigation, the PublicProsecutor again decided, on 15th April, 1966, to discontinue theproceedings.The Applicant's appeal from this decision was rejected on 18th July,1966 by the Senior Public Prosecutor at the Kammergericht. TheApplicant then lodged an application for a judicial decision by theKammergericht in accordance with Article 172 of the Code of CriminalProcedure. This application was rejected on 29th August, 1966.The Government has not submitted that the Applicant was also obligedto exhaust further remedies in order to comply with Article 26 of theConvention. It is true that the Government referred to two furtherremedies, namely(a) an application for a judicial decision by the Kammergericht inaccordance with Article 23 of the Introductory Act to the JudicatureAct (Einführungsgesetz zum Gerichtsverfassungsgesetz) which providesfor an appeal in regard to decisions and measures taken by the prisonauthorities;(b) civil proceedings against the Land Berlin in respect of breach ofofficial duty (Amtspflichtverletzung) by officers of justice, the legalbasis being Article 34 of the Basic Law (Grundgesetz) and certainprovisions of the Civil Code (Bürgerliches Gesetzbuch), in particular,Article 839.The Government emphasised, however, that the principal remedy in thepresent case was a criminal charge.The Applicant's lawyer maintained that the Applicant had exhausted thedomestic remedies within the meaning of Article 26 of the Convention.He submitted that, as the Applicant had pursued the proceedingsregarding the criminal charge up to the Kammergericht, he could not berequired also to lodge an application according to Article 23 of theIntroductory Act to the Judicature Act. The lawyer further submittedthat civil proceedings could not be considered to be an effectiveremedy in respect of alleged punishable acts unless it had first beenestablished in criminal proceedings that an offence had been committed.In particular, the courts would never grant legal aid unless thiscondition was satisfied.3. As to the question whether the Application is manifestly ill-founded(Article 27, paragraph (2), of the Convention)The Government did not make any substantial comments on the incidentof 4th September, 1965 itself. It referred, however, to certainstatements made by the prison officers concerned and submitted certaindocuments, in particular, the file of the Public Prosecutor regardinghis investigation of the Applicant's allegations. The Government alsopointed out, on the basis of the statements of the prison officers,that the background of the incident was different from what theApplicant had stated. On this point, the following statement made bythe Government's representative at the oral hearing may be quoted:"The important point appears to me to be Principal Officer H'sstatement that the Applicant was not on his way back from the hospital,as he said, when this altercation came about. H states here that he hadlocked out the prisoners of the section in which Kornmann was for theirrecreation period, in other words he had let them out of the section,which was closed off, and when he looked down into that wing of thebuilding he saw that Kornmann, whom he had also shut out for therecreation period, was in front of the infirmary. The report continues:"If Kornmann says that he was shut out by me to go to the hospital andnot for the recreation period, that is not correct." The PrincipalOfficer's duty was to watch prisoners in their recreation periodcarefully, in particular, to ensure that no prisoner separated himselffrom the group, for if that happens there is always the danger ofescape or attempted escape. He asked Kornmann what he was doing infront of the hospital and told him he had to report to him (H) beforehe went there. We read further that H did not bawl at the Applicant atall, as Kornmann has stated in his petition; it was rather the otherway round. Kornmann is said to have immediately become abusive in replyto the officer's rebuke and to have made remarks like, "I won't beordered about by you. Who do you think you are? I won't put up withyour Nazi concentration camp methods." H then told the Applicant tocome with him. Kornmann did not obey this order. H therefore had toforce him to come with him, and Kornmann resisted. That is how thestruggle came about. This is confirmed in the main by the otherwitnesses who, it is true, did not see the beginning."The Government also submitted that the Applicant was not a personworthy of credit. Even the manner in which he had conducted his casebefore the Commission disclosed a tendency to be querulous and variousstatements made by him in his letters to the Commission were mereinvention. One example was that he had frequently referred to hi***periences in a concentration camp, although, in fact, it was certainthat he had never been in such a camp. The Government also referredagreed in stressing his lack of honesty at the time when he was atschool. It was also submitted that the Applicant had himself asked tobe transferred to a mental home by reason of his mental condition;further, that the Applicant's wife had declared that she had found acertificate by a mental institution from which it appeared that in 1954the Applicant, criminally responsible according to Article 51,paragraph (1), of the Criminal Code. The Government also indicated thatthe Applicant would be examined by a psychiatrist in connection withcriminal proceedings which had been instituted against him in respectof defamation and false accusations against prison officers.The Applicant's lawyer adhered to the Applicant's own version of theincident on 4th September, 1965 and contested that the Applicant'sstatements could be disregarded on the ground that he was not worthyof credit. He pointed out that lately there had been numerous cases ofill-treatment in German prisons and that therefore the Applicant'sallegations were in no way absurd.THE LAWWhereas the Government has submitted a declaration of 8th October, 1965in which the Applicant states that he withdraws his petition to theCouncil of Europe dated 4th September, 1965; whereas the Applicant'scomplaint regarding the alleged ill-treatment on 4th September, 1965was first submitted to the Commission by a letter dated 4th September,1965;Whereas, therefore, the Commission is satisfied that the declarationof withdrawal invoked by the Government concerned the incident of 4thSeptember, 1965;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 Application,the Commission, in its decision to strike out the Applicationconcerned, has consistently included the following proviso, namely,that no reasons of a general character affecting the observance of theConvention necessitated a further examination of the complaint (seeApplications Nos. 2169/64, 2204/64 and 2326/64, Collection ofDecisions, Volume 14, page 82); whereas, in certain cases, theCommission has found that the Application concerned raised problemsunder the Convention which might extend beyond the interests of theparticular Applicant and has decided, on that ground, not to strike outthe Application in spite of the declaration of withdrawal (seeApplications Nos. 2004/63, Collection of Decisions, Volume 20, pages50 - 51, and 2294/64, Collection of Decisions, Volume 20, pages 99 -100);Whereas the Commission finds that the present Application raises suchproblems under the Convention and, consequently, considers that thereare sufficient reasons to examine the admissibility of the Applicationirrespective of the possible existence of a valid declaration ofwithdrawal 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 lodginga criminal charge (Strafanzeige);Whereas the Commission observes that the Applicant complains ofill-treatment by prison officers and that the alleged acts constitutecriminal offenses under 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 criminal charge with the competent Public Prosecutorand, in the case of refusal by the Public Prosecutor to institutecriminal proceedings, to use all remedies available under German lawagainst such decision by the Public Prosecutor;Whereas, as regards the implementation of this remedy, it appears that,on 11th September, 1965, the Applicant lodged a criminal charge which,however, he subsequently withdrew; whereas the Public Prosecutor firstdecided, in view of this withdrawal, to discontinue the proceedings butsubsequently re-opened the investigation ex officio; whereas, however,the Public Prosecutor decided for the second time, on 15th April, 1966,to discontinue the proceedings; whereas the Applicant appealed fromthis decision but his appeal was rejected on 18th July, 1966 by theSenior Public Prosecutor; whereas the Applicant also lodged anapplication with the Kammergericht according to Article 172 of the Codeof Criminal Procedure and whereas this application was rejected on 29thAugust, 1966;Whereas it follows that the Applicant exhausted these particularremedies as required by Article 26 (Art. 26) of the Convention;Whereas the Commission has also examined the question whether theApplicant was obliged to exhaust any further remedy in order to complywith Article 26 (Art. 26); whereas the proceedings which might enterinto consideration are, on the one hand, those provided for in Article23 of the Introductory Act to the Judicature Act (Einführungsgesetz zumGerichtsverfassungsgesetz) and, on the other, civil proceedings againstthe Land Berlin.Whereas, in this regard, the Commission observes that the present caseconcerns primarily a question of evidence and that the reason why theApplicant was unsuccessful in lodging a criminal charge was that theauthorities did not find that there was sufficient evidence to supporthis allegations; whereas it is clear that the Applicant, if he hadlodged an application according to Article 23 of the Introductory Actto the Judicature Act or had instituted civil proceedings, would havebeen faced with the same problem of proving that he had in fact beenill-treated; whereas, consequently, his failure to prove hisallegations in connection with his criminal charge creates apresumption to the effect that neither an application lodged accordingto Article 23 of the said Introductory Act nor civil proceedings wouldhave had any chance of giving the Applicant satisfaction;Whereas, therefore, these two remedies cannot be considered assufficient or effective in the circumstances of the present case andthe Applicant was not obliged to exhaust them in order to comply withArticle 26 (Art. 26) of the Convention;Whereas the Commission concludes that the conditions laid down inArticle 26 (Art. 26) have been satisfied in the present case;Whereas the Applicant's allegations give rise to an important questionof a possible violation of Article 3 (Art. 3) of the Convention;Whereas, however, the full circumstances relating to the incident of4th September, 1965 are to some extent in dispute and theirdetermination requires a complete investigation of the case; whereasit follows that this complaint cannot be regarded as manifestlyill-founded within the meaning of Article 27, paragraph (2)(Art. 27-2), of the Convention and cannot be declared inadmissible;For these reasons and without in any way prejudging the merits of thecase, the Commission,Having regard to its partial decision of 16th December, 1965, declaresADMISSIBLE and accepts the remainder of the Application.