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07-15-2009, 01:00 AM
X. v. THE FEDERAL REPUBLIC OF GERMANY - 2300/64 [1967] ECHR 9 (10 February 1967)
THE FACTSWhereas the facts of the case as presented by the Applicant may besummarised as follows:The Applicant is a German citizen, born in 1923 and at present detainedin prison at Bruchsal.It appears that on .. November, 1958 he was convicted by the RegionalCourt (Landgericht) of Stuttgart on numerous charges of aggravatedtheft and attempted aggravated theft and sentenced to 61/2 years' penalservitude (Zuchthaus) and subsequent preventive detention(Sicherungsverwahrung).In his original Application as well as in many subsequent letters, hecomplains of various measures taken against him by the prisonauthorities during his detention at Bruchsal, and he considers that theGerman authorities have committed perversion of justice (Rechtsbeugung)by constantly rejecting his complaints and appeals regarding themeasures taken against him in prison.His various complaints may be summarised as follows:1. Detention in a "silence division" (Schweigeabteilung)The Applicant states that from .. November, 1958 he had to serve hissentence in a so-called "silence-division" (Schweigeabteilung) at theprison of Bruchsal. In such a division, prisoners are not allowed totalk to their fellow-prisoners or to attend cinema performances orsimilar entertainments. When in the prison yard, such prisoners are tobe kept at a distance of at least 10 metres from other prisoners.The Applicant states that he had to serve his sentence in such adivision for almost 6 years. From .. September, 1964, however, he wasallowed to serve his sentence under a less severe prison regime.He maintains that detention in a "silence division" has necessarilyfatal effects on any person's physical and mental state. In particular,this is so when a prisoner is kept in such a division and consequentlyforbidden to speak to other persons for a long period and in his owncase such prohibition was enforced for six years. He submits that theestablishment of the divisions concerned is not based on any law, butis a measure taken by the Bruchsal Prison Director on his owninitiative in order to aggravate the sentences imposed by the courts.In respect of his detention in a "silence division", the Applicantbrought a criminal charge (Strafanzeige) against the prisonadministration. This charge was rejected on .. June, 1964 by the Officeof the Public Prosecutor at the Regional Court (Staatsanwaltschaft beidem Landgericht) of Karlsruhe and on .. September, 1964 by the SeniorPublic Prosecutor at the Court of Appeal (Generalstaatsanwalt bei demOberlandesgericht) of Karlsruhe. In regard to that decision, he lodgedan application for a judicial decision (Antrag auf gerichtlicheEntscheidung) with the Court of Appeal (Oberlandesgericht) of Karlsruheand this application was apparently also unsuccessful.In August, 1964, he lodged a constitutional appeal(Verfassungsbeschwerde) but, by letter of .. September, 1964 from theFederal Constitutional Court (Bundesverfassungsgericht), he wasinformed that his appeal did not appear to be admissible since he hadnot exhausted all other remedies. It was indicated to him that heshould first have availed himself of the remedies laid down in theService and Prison Rules (Dienst- und Vollzugsordnung) and that,finally, he could have lodged an application for a judicial decisionaccording to Article 23 of the Introductory Act to the Judicature Act(Einführungsgesetz zum Gerichtsverfassungsgesetz). The Applicant againwrote to the Federal Constitutional Court and it appears that hiscomplaint was registered as a constitutional appeal (as to the fate ofthat appeal, see below under "Submissions of the Parties").It seems that the Applicant also complained to the Ministry of Justicebut he states that the Ministry did not give him any final reply,thereby, in his opinion, preventing him from exhausting the domesticremedies.The Applicant states that as a result of his detention in a "silencedivision" he contracted a stomach ulcer and he also points out thatduring that detention he was exposed to all sorts of affronts by theprison officers.He alleges violations of Articles 2 and 3 of the Convention.2. Interference with right of correspondence(a) On .. November, 1958, the Applicant received permission tocorrespond regularly (Regelbriefverkehr) with a certain Miss A. W whomhe intended to marry and who was the mother of his two illegitimatechildren. He did not wish to correspond with his wife as they were nolonger living together and he apparently intended to obtain a divorcefrom her. On one occasion, however, his wife wrote to him enclosing ashort letter from his legitimate daughter. He then asked for specialpermission to send a letter in reply to his daughter under the addressof his wife. As a result, the prison authorities withdrew, on ..December, 1959, the permission for him to correspond with Miss W. On.. February, 1960, the prison authorities seized a letter written on.. January, 1960 by Miss W to the Applicant. On .. April, 1963, aftermore than three years' interruption of his correspondence with Miss W,the Applicant was again allowed to correspond with her but only oncondition that he did not write to his wife.The Applicant states that as a result of the long interruption of hiscorrespondence with Miss W difficulties and misunderstandings arosebetween them, and Miss W even married another man from whom, however,she subsequently became divorced.After lodging a hierarchical appeal (Dienstaufsichtsbeschwerde) whichwas rejected on .. May, 1963 by the Ministry of Justice inBaden-Württemberg, the Applicant instituted proceedings regarding theinterference with his correspondence with the Administrative Court(Verwaltungsgericht) of Karlsruhe. The Administrative Court did notconsider itself to be competent to deal with the case but transferredit, on .. January, 1964, to the Court of Appeal of Karlsruhe. On ..July, 1964, the Court of Appeal, which considered the Applicant'spetition as an application lodged under Article 23 of the IntroductoryAct to the Judicature Act, declared it inadmissible, partly becausesome of the decisions complained of had been given before Article 23of the said Act had entered into force, and partly because theApplicant had not exhausted his remedies according to the ExecutionOrdinance (Strafvollzugsordnung).The Applicant alleges a violation of Article 8 of the Convention. Hestates that, in fact, the interference with his correspondence was anact of revenge for his refusal to participate in the divine servicesin prison and to accept Christmas gifts which were being distributedby the Prison Chaplain, and he therefore also alleges a violation ofArticle 8 of the Convention.(b) The Applicant also complains that many letters which he had writtenin prison had not been forwarded because they were considered to bedefamatory or offensive. He mentions, in particular, letters to hislawyer, Professor P, in East Berlin, and to his fiancée who is livingin the Soviet Occupied Zone of Germany. He has submitted extracts oftwo such letters to his fiancée which mainly deal with the conditionsin German prisons in general and with certain particular cases ofill-treatment in a Hamburg prison.The Applicant maintains that some of the letters seized were formalcomplaints and that, therefore, he was prevented from exhaustingdomestic remedies in regard to some allegations. He provides no furtherdetails on this point.He alleges violations of Articles 8 and 10 of the Convention.3. Miscellaneous complaints(a) Certain complaints relate to the medical treatment which theApplicant has received during his detention.He states that as he suffered from a stomach ulcer he was sent tohospital where the competent doctor ordered that he should follow aspecial diet ("Milchbreikost"). After he had been discharged from thehospital, the Prison Doctor, paying no attention to his state ofhealth, permitted his return to the "silence division" although he wasin fact physically unfit for such severe detention. In the "silencedivision", the Prison Doctor only gave him special diet once a day,although the other doctor who had treated him at the hospital hadordered that such diet should be given twice a day.The Applicant also complains that the Prison Doctor gave him a certaininjection without first consulting a surgeon.In regard to the action of the Prison Doctor, the Applicant complainedto the Medical Association (Ärztekammer) and he also lodged ahierarchical appeal (Dienstaufsichtsbeschwerde) with the Ministry ofJustice, but without success. He also brought a criminal charge againstthe Doctor, but the Public Prosecutor refused to prosecute.He alleges a violation of Article 2 of the Convention.(b) On .. May, 1965, the Regional Court (Landgericht) of Karlsruhe helda hearing in regard to the divorce proceedings pending between theApplicant and his wife.The Applicant was forced to appear at this hearing and before appearingat the court he was ill-treated and brutally handcuffed by policeofficers, so that one hand was injured, and he was trodden upon. Inregard to his hand injury, the Doctor did not give him any treatment.At the hearing, his lawyer protested against this violent treatment towhich the Applicant had been subjected but the President merely askedhis lawyer to keep calm.The Applicant complained without success of the brutal action of thepolice officers and the failure of the Doctor to give him adequatetreatment. The Ministry of Justice rejected his complaint on .. May,1965. His complaint to the Local Medical Association(Bezirksärztekammer) of North-Baden was transmitted to the Ministry ofJustice which, on .. June, 1965, rejected the complaint by referringto its previous decision of .. May, 1965.The Applicant also submitted an application for a judicial decision(Antrag auf gerichtliche Entscheidung) to the Court of Appeal inStuttgart which rejected this application on .. August, 1965.The Applicant finally brought criminal charges in respect of the sameincident, but the Public Prosecutor at the Regional Court decided on.. August, 1965 not to take any action, and this decision was upheldon .. September, 1965 by the Senior Public Prosecutor at the Court ofAppeal. He asked for legal aid in order to be able to bring the casebefore the Court of Appeal, but on .. November, 1965, legal aid wasrefused.(c) In respect of the alleged ill-treatment of an Algerian prisoner,the Applicant complained to the Federal Parliament (Bundestag). Thiscomplaint was transmitted to the Parliament (Landtag) ofBaden-Württemberg which dismissed it on .. January, 1964.He also submitted a criminal charge against the prison officerallegedly responsible for this ill-treatment, but on .. September,1964, the Public Prosecutor refused to institute criminal proceedings.(d) The Applicant also brought a criminal charge against a prisonofficer who had allegedly made certain antisemit statements. Althoughhis allegations were supported by another prisoner, the PublicProsecutor did not find that there were sufficient reasons to institutecriminal proceedings, and this decision given on .. January, 1964 wasupheld on .. March, 1964 by the Senior Public Prosecutor.(e) From the file, it appears that the Applicant also lodged a numberof other complaints in regard to various prison officers who hadallegedly insulted him or had otherwise behaved improperly. He alsocomplained that a letter sent to him by his lawyer had been opened bythe prison authorities and he complained to the Bar Association aboutthe way his lawyer had assisted him. Other complaints concerneddisciplinary punishments imposed on him and on one occasion he allegedthat he had not enough writing paper at his disposal. None of thesecomplaints were apparently successful, and it is not clear to whatextent he actually intends to raise these complaints before theCommission.Proceedings before the CommissionWhereas the proceedings before the Commission may be summarised asfollows:By letters of 11th and 27th September and 14th October, 1965, theApplicant informed the Commission that he wished to withdraw hisApplication. Before the Commission had taken any decision in regard tothis withdrawal, the Applicant indicated, however, by letter of 4thDecember, 1965, that he again wished the Commission to examine hiscase.On 6th October, 1966, the Commission decided:(a) to give notice to the Federal Government, pursuant to Rule 45,paragraph (3) (b), of the Commission's Rules of Procedure, of theApplication in so far as it concerned the Applicant's complaint as tohis detention in a "silence division" and to invite the Government tosubmit its observations on the admissibility of that part of theApplication;(b) to adjourn its examination of the remaining parts of theApplication.The Government submitted its observations on 16th December, 1966 andthe Applicant's reply is dated 28th December, 1966 and was received bythe Commission on 4th January, 1967.In view of the contents of the Applicant's reply, the Governmentsubmitted, on 20th January, 1967, a further pleading which wascommunicated to the Applicant for his information.Submissions of the Parties
THE FACTSWhereas the facts of the case as presented by the Applicant may besummarised as follows:The Applicant is a German citizen, born in 1923 and at present detainedin prison at Bruchsal.It appears that on .. November, 1958 he was convicted by the RegionalCourt (Landgericht) of Stuttgart on numerous charges of aggravatedtheft and attempted aggravated theft and sentenced to 61/2 years' penalservitude (Zuchthaus) and subsequent preventive detention(Sicherungsverwahrung).In his original Application as well as in many subsequent letters, hecomplains of various measures taken against him by the prisonauthorities during his detention at Bruchsal, and he considers that theGerman authorities have committed perversion of justice (Rechtsbeugung)by constantly rejecting his complaints and appeals regarding themeasures taken against him in prison.His various complaints may be summarised as follows:1. Detention in a "silence division" (Schweigeabteilung)The Applicant states that from .. November, 1958 he had to serve hissentence in a so-called "silence-division" (Schweigeabteilung) at theprison of Bruchsal. In such a division, prisoners are not allowed totalk to their fellow-prisoners or to attend cinema performances orsimilar entertainments. When in the prison yard, such prisoners are tobe kept at a distance of at least 10 metres from other prisoners.The Applicant states that he had to serve his sentence in such adivision for almost 6 years. From .. September, 1964, however, he wasallowed to serve his sentence under a less severe prison regime.He maintains that detention in a "silence division" has necessarilyfatal effects on any person's physical and mental state. In particular,this is so when a prisoner is kept in such a division and consequentlyforbidden to speak to other persons for a long period and in his owncase such prohibition was enforced for six years. He submits that theestablishment of the divisions concerned is not based on any law, butis a measure taken by the Bruchsal Prison Director on his owninitiative in order to aggravate the sentences imposed by the courts.In respect of his detention in a "silence division", the Applicantbrought a criminal charge (Strafanzeige) against the prisonadministration. This charge was rejected on .. June, 1964 by the Officeof the Public Prosecutor at the Regional Court (Staatsanwaltschaft beidem Landgericht) of Karlsruhe and on .. September, 1964 by the SeniorPublic Prosecutor at the Court of Appeal (Generalstaatsanwalt bei demOberlandesgericht) of Karlsruhe. In regard to that decision, he lodgedan application for a judicial decision (Antrag auf gerichtlicheEntscheidung) with the Court of Appeal (Oberlandesgericht) of Karlsruheand this application was apparently also unsuccessful.In August, 1964, he lodged a constitutional appeal(Verfassungsbeschwerde) but, by letter of .. September, 1964 from theFederal Constitutional Court (Bundesverfassungsgericht), he wasinformed that his appeal did not appear to be admissible since he hadnot exhausted all other remedies. It was indicated to him that heshould first have availed himself of the remedies laid down in theService and Prison Rules (Dienst- und Vollzugsordnung) and that,finally, he could have lodged an application for a judicial decisionaccording to Article 23 of the Introductory Act to the Judicature Act(Einführungsgesetz zum Gerichtsverfassungsgesetz). The Applicant againwrote to the Federal Constitutional Court and it appears that hiscomplaint was registered as a constitutional appeal (as to the fate ofthat appeal, see below under "Submissions of the Parties").It seems that the Applicant also complained to the Ministry of Justicebut he states that the Ministry did not give him any final reply,thereby, in his opinion, preventing him from exhausting the domesticremedies.The Applicant states that as a result of his detention in a "silencedivision" he contracted a stomach ulcer and he also points out thatduring that detention he was exposed to all sorts of affronts by theprison officers.He alleges violations of Articles 2 and 3 of the Convention.2. Interference with right of correspondence(a) On .. November, 1958, the Applicant received permission tocorrespond regularly (Regelbriefverkehr) with a certain Miss A. W whomhe intended to marry and who was the mother of his two illegitimatechildren. He did not wish to correspond with his wife as they were nolonger living together and he apparently intended to obtain a divorcefrom her. On one occasion, however, his wife wrote to him enclosing ashort letter from his legitimate daughter. He then asked for specialpermission to send a letter in reply to his daughter under the addressof his wife. As a result, the prison authorities withdrew, on ..December, 1959, the permission for him to correspond with Miss W. On.. February, 1960, the prison authorities seized a letter written on.. January, 1960 by Miss W to the Applicant. On .. April, 1963, aftermore than three years' interruption of his correspondence with Miss W,the Applicant was again allowed to correspond with her but only oncondition that he did not write to his wife.The Applicant states that as a result of the long interruption of hiscorrespondence with Miss W difficulties and misunderstandings arosebetween them, and Miss W even married another man from whom, however,she subsequently became divorced.After lodging a hierarchical appeal (Dienstaufsichtsbeschwerde) whichwas rejected on .. May, 1963 by the Ministry of Justice inBaden-Württemberg, the Applicant instituted proceedings regarding theinterference with his correspondence with the Administrative Court(Verwaltungsgericht) of Karlsruhe. The Administrative Court did notconsider itself to be competent to deal with the case but transferredit, on .. January, 1964, to the Court of Appeal of Karlsruhe. On ..July, 1964, the Court of Appeal, which considered the Applicant'spetition as an application lodged under Article 23 of the IntroductoryAct to the Judicature Act, declared it inadmissible, partly becausesome of the decisions complained of had been given before Article 23of the said Act had entered into force, and partly because theApplicant had not exhausted his remedies according to the ExecutionOrdinance (Strafvollzugsordnung).The Applicant alleges a violation of Article 8 of the Convention. Hestates that, in fact, the interference with his correspondence was anact of revenge for his refusal to participate in the divine servicesin prison and to accept Christmas gifts which were being distributedby the Prison Chaplain, and he therefore also alleges a violation ofArticle 8 of the Convention.(b) The Applicant also complains that many letters which he had writtenin prison had not been forwarded because they were considered to bedefamatory or offensive. He mentions, in particular, letters to hislawyer, Professor P, in East Berlin, and to his fiancée who is livingin the Soviet Occupied Zone of Germany. He has submitted extracts oftwo such letters to his fiancée which mainly deal with the conditionsin German prisons in general and with certain particular cases ofill-treatment in a Hamburg prison.The Applicant maintains that some of the letters seized were formalcomplaints and that, therefore, he was prevented from exhaustingdomestic remedies in regard to some allegations. He provides no furtherdetails on this point.He alleges violations of Articles 8 and 10 of the Convention.3. Miscellaneous complaints(a) Certain complaints relate to the medical treatment which theApplicant has received during his detention.He states that as he suffered from a stomach ulcer he was sent tohospital where the competent doctor ordered that he should follow aspecial diet ("Milchbreikost"). After he had been discharged from thehospital, the Prison Doctor, paying no attention to his state ofhealth, permitted his return to the "silence division" although he wasin fact physically unfit for such severe detention. In the "silencedivision", the Prison Doctor only gave him special diet once a day,although the other doctor who had treated him at the hospital hadordered that such diet should be given twice a day.The Applicant also complains that the Prison Doctor gave him a certaininjection without first consulting a surgeon.In regard to the action of the Prison Doctor, the Applicant complainedto the Medical Association (Ärztekammer) and he also lodged ahierarchical appeal (Dienstaufsichtsbeschwerde) with the Ministry ofJustice, but without success. He also brought a criminal charge againstthe Doctor, but the Public Prosecutor refused to prosecute.He alleges a violation of Article 2 of the Convention.(b) On .. May, 1965, the Regional Court (Landgericht) of Karlsruhe helda hearing in regard to the divorce proceedings pending between theApplicant and his wife.The Applicant was forced to appear at this hearing and before appearingat the court he was ill-treated and brutally handcuffed by policeofficers, so that one hand was injured, and he was trodden upon. Inregard to his hand injury, the Doctor did not give him any treatment.At the hearing, his lawyer protested against this violent treatment towhich the Applicant had been subjected but the President merely askedhis lawyer to keep calm.The Applicant complained without success of the brutal action of thepolice officers and the failure of the Doctor to give him adequatetreatment. The Ministry of Justice rejected his complaint on .. May,1965. His complaint to the Local Medical Association(Bezirksärztekammer) of North-Baden was transmitted to the Ministry ofJustice which, on .. June, 1965, rejected the complaint by referringto its previous decision of .. May, 1965.The Applicant also submitted an application for a judicial decision(Antrag auf gerichtliche Entscheidung) to the Court of Appeal inStuttgart which rejected this application on .. August, 1965.The Applicant finally brought criminal charges in respect of the sameincident, but the Public Prosecutor at the Regional Court decided on.. August, 1965 not to take any action, and this decision was upheldon .. September, 1965 by the Senior Public Prosecutor at the Court ofAppeal. He asked for legal aid in order to be able to bring the casebefore the Court of Appeal, but on .. November, 1965, legal aid wasrefused.(c) In respect of the alleged ill-treatment of an Algerian prisoner,the Applicant complained to the Federal Parliament (Bundestag). Thiscomplaint was transmitted to the Parliament (Landtag) ofBaden-Württemberg which dismissed it on .. January, 1964.He also submitted a criminal charge against the prison officerallegedly responsible for this ill-treatment, but on .. September,1964, the Public Prosecutor refused to institute criminal proceedings.(d) The Applicant also brought a criminal charge against a prisonofficer who had allegedly made certain antisemit statements. Althoughhis allegations were supported by another prisoner, the PublicProsecutor did not find that there were sufficient reasons to institutecriminal proceedings, and this decision given on .. January, 1964 wasupheld on .. March, 1964 by the Senior Public Prosecutor.(e) From the file, it appears that the Applicant also lodged a numberof other complaints in regard to various prison officers who hadallegedly insulted him or had otherwise behaved improperly. He alsocomplained that a letter sent to him by his lawyer had been opened bythe prison authorities and he complained to the Bar Association aboutthe way his lawyer had assisted him. Other complaints concerneddisciplinary punishments imposed on him and on one occasion he allegedthat he had not enough writing paper at his disposal. None of thesecomplaints were apparently successful, and it is not clear to whatextent he actually intends to raise these complaints before theCommission.Proceedings before the CommissionWhereas the proceedings before the Commission may be summarised asfollows:By letters of 11th and 27th September and 14th October, 1965, theApplicant informed the Commission that he wished to withdraw hisApplication. Before the Commission had taken any decision in regard tothis withdrawal, the Applicant indicated, however, by letter of 4thDecember, 1965, that he again wished the Commission to examine hiscase.On 6th October, 1966, the Commission decided:(a) to give notice to the Federal Government, pursuant to Rule 45,paragraph (3) (b), of the Commission's Rules of Procedure, of theApplication in so far as it concerned the Applicant's complaint as tohis detention in a "silence division" and to invite the Government tosubmit its observations on the admissibility of that part of theApplication;(b) to adjourn its examination of the remaining parts of theApplication.The Government submitted its observations on 16th December, 1966 andthe Applicant's reply is dated 28th December, 1966 and was received bythe Commission on 4th January, 1967.In view of the contents of the Applicant's reply, the Governmentsubmitted, on 20th January, 1967, a further pleading which wascommunicated to the Applicant for his information.Submissions of the Parties