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07-16-2009, 12:58 PM
X. v. THE GERMANY - 2724/66 [1967] ECHR 29 (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 1926 and at present detainedin prison at Düsseldorf.1. The Applicant states that, on .. March, 1964, he was detained onremand (Untersuchungshaft) on suspicion of aggravated theft. When hewrote to the Commission on 17th July 1966, he stated that he was stillin detention on remand and that an indictment had not yet been issuedagainst him. By letter of 19th December, 1966, he confirmed that he wasstill in detention on remand but indicated at the same time that he hadbeen convicted in respect of certain charges by a court which heconsidered to be prejudiced against him.The Applicant has not submitted full information regarding theproceedings before the German courts in respect of his detention.In his first letter to the Commission (21st May, 1965), he indicatedthat proceedings regarding his detention (Haftprüfung) had taken place,but he complained that he had not been allowed to express his views inthese proceedings ("in keiner Fase der Haftprüfung hat man michsprechen lassen, sondern man hat mir den Mund verboten"). In hisapplication form (11th September, 1965) he also referred to his appealsagainst detention (Anträge auf Haftüberprüfung) but without providingany details about them.In a subsequent letter to the Commission (17th July, 1966), he statedthat he had repeatedly applied to the Regional Court (Landgericht) ofDüsseldorf for an oral hearing regarding the continuation of hisdetention. This had not been granted until .. March, 1966, that isafter two years' detention and, moreover, his lawyer had not been askedto appear at the hearing.2. The Applicant states that he is innocent in respect of the offensesof which he is suspected and that there is evidence to prove hisinnocence. However, as the Public Prosecutor has failed to indicate thedate of the alleged offence, the Applicant is unable to present a validalibi and, if he should try to do this, the Public Prosecutor wouldonly state that the offence might have been committed on anotheroccasion.The Applicant also complains that the authorities have tried to obtaina confession from him by using improper methods, such as blackmail andill-treatment.In particular, he alleges that he has been ill-treated during hisdetention both in connection with his interrogation by the police andotherwise in prison. As a result of this alleged ill-treatment, hesuffered serious injuries. His left eye was so badly injured that hehad to be treated at the prison hospital for six months and the sightof that eye has remained affected.The Applicant further complains that, in order to aggravate hisdetention, the prison authorities have refused, contrary to generalpractice, to let him have books from the prison library or to give himpermission to use a transistor radio. He also complains that he has notbeen allowed to be represented by a lawyer appointed by himself butonly by a lawyer appointed ex officio in whom he has no confidence, andthat the prison administration has interfered with his right of defenceby suppressing his letters to lawyers and public authorities.3. The Applicant alleges violations of Articles 3, 6, paragraphs (1),(2) and (3), 8 and 9 of the Convention.Proceedings before the CommissionWhereas the proceedings before the Commission may be summarised asfollows:I. Questions of interference with the Applicant's right to correspondwith the Commission (Article 25 of the Convention)1. The Applicant first wrote to the Commission on 21st May, 1965, andhe received in reply the usual information regarding the submission ofan application to the Commission.By letter of 21st October, 1965, he informed the Commission that he hadtried to send his formal application to the Commission but that it hadbeen seized by the German authorities. He also enclosed a copy of adecision of .. September, 1965, by which a letter written by theApplicant to the Council of Europe had been stopped ("von derBeförderung ausgeschlossen") by the Regional Court of Düsseldorfbecause of defamatory contents.On 14th December, 1965, the Commission decided to request informationfrom the Federal Government in regard to the seizure of his letter.On 10th February, 1966, the Government informed the Commission that theRegional Court of Düsseldorf had, after "a new examination", revisedits decision of .. September, 1965, by which the Applicant's letter hadbeen seized.In the meanwhile, the Commission's Secretary had received, on 31stJanuary, 1966, the Applicant's application form dated 11th September,1965, and had duly registered it.2. On 15th June, 1966, the Commission's Secretary received from theApplicant a letter containing further submissions in regard to thepresent Application. This letter seemed to have been originally dated16th November, 1965 but this date had apparently been changed to 8thJune, 1966.In reply, the Secretary asked the Applicant when he had actuallywritten and sent the letter which had been received on 15th June, 1966.The Applicant replied that he had written and sent this letter on 16thNovember, 1965 but that it had then apparently not been forwarded andthat, subsequently, the date had been changed.3. The Applicant indicated that he could not in his letters give theCommission full information in regard to his complaints since he wouldthen run the risk of being subjected to reprisals. He also stated thathe did not find it advisable to enclose any documents with his lettersto the Commission as he could not be certain as to whether suchdocuments would ever reach the Commission.The Applicant therefore requested that the Commission should appointa "neutral" person to whom he could personally confide information anddocuments which he wished to submit to the Commission.II. Insulting language in the Applicant's submissionsOn 6th October, 1966, the Commission observed, during its examinationof the Application, that in some of his submissions the Applicant hadmade use of insulting and provocative language. The Commission,therefore, decided to inform the Applicant that, unless he was preparedto withdraw or amend certain passages of his submissions, it wouldreject the whole Application as being an abuse of the right of petitionwithin the meaning of Article 27, paragraph (2), of the Convention.The passage concerned were the following:(a) In his application form of 11th September, 1965, he wrote: "Theyreproach me of having been an opponent of the Hitler Reich and callthis a bad past. But I reproach the Court of working as Nazi judges inthe German Courts" (Meine Widerstandsbewegung gegen das Hitlerreichwirft man mir als schlechte Vergangenheit vor. Ich dagegen werfe demGericht vor, dass sie als Nazi-Richter in den deutschen Gerichtenwalten).(b) In his letter of 13th April, 1966, he wrote: "My opinion in thisrespect is that one can only obtain right here by means of money andthat otherwise one is in a bad position" (Meine Auffassung zu diesenDingen ist, dass man sich hier nur Recht durch Geld verschaffen kannoder sonst benachteiligt ist).(c) In his letter which arrived on 15th June, 1966, he wrote: "I allegethat the German Justice makes use of the meanest methods which areworse than those of the Hitler Reich in order to break my resistance.For this reason, I can have no respect for German Justice, since itsuppresses in a horrible manner and with impermissible methods anybetter feelings of an individual ... .They tell me that we live in aState founded on law, but I doubt this. I have more respect for aprostitute than for German Justice" (Ich mache der deutschen Justiz denVorwurf, dass sie die gemeinsten Mittel, die das Hitlerreichübersteigen, anwendet um mich mürbe zu machen. Ich kann aus diesemGrunde keine Achtung vor der deutschen Justiz haben, weil sie mitunerlaubten Mitteln jede bessere Regung eines einzelnen Menschengrausam unterdrücken tut ... . Sie sprechen mich an, wir leben in einemRechtsstaat, aber ich stelle das in Zweifel. Achtung habe ich vor jederDirne [mehr] als vor der Justiz in Deutschland.)By letter of 9th January, 1967, the Applicant replied in the followingway:"(a) The application form of 11th September, 1965 is changed so as toindicate that I only wanted to show the method used in this respect.(b) The letter of 13th April, 1966 is changed so as to indicate thatthese are facts which can be proved by recent newspaper reports.(c) The last sentence is deleted: 'I have more respect ...' The methodof treating people in detention on remand is proved by the trials inCologne and Hamburg. May complaints in this regard have had no effect."-----------------------------------------------------------------[(a) Beschwerdeformular vom 11.9.65 wird dahin geändert, dass ich nurdie Methode wie man das macht, aufzeigen wollte.(b) Brief vom 13. April 1966 wird dahin geändert, dass dieses Tatsachensind, die man durch neueste Zeitungsberichte belegen kann.(c) Der letzte Absatz wird gestrichen: "Achtung habe ich vor ..." DieMethode, wie man in U-Haft behandelt wird, beweisen die Prozesse inKöln und Hamburg. Meine Anzeigen hat man diesbezüglich fallengelassen.]-----------------------------------------------------------------THE LAWWhereas Article 27, paragraph (2) (Art. 27-2) of the Conventionprovides that "the Commission shall consider inadmissible any petitionsubmitted under Article 25 (Art. 25), which it considers an abuse ofthe right of petition";Whereas, in the present case, the Applicant's pleadings contained threepassages which were provocative and insulting to the respondentGovernment; whereas, therefore, the Commission invited the Applicantto withdraw or amend these passages; whereas the Commission alsoinformed him that, unless he was prepared to withdraw or amend thesepassages, it would reject the whole Application as being an abuse ofthe right of petition within the meaning of Article 27, paragraph (2)(Art. 27-2) of the Convention;Whereas the Applicant has, by letter of 9th January, 1967, submittedhis reply to this statement by the Commission;Whereas the Commission considers that, in respect of the first twoobjectionable passages quoted above, the Applicant's reply cannot beconsidered to constitute a withdrawal or an acceptable amendment;Whereas, in respect of the third passage, it is true that the Applicanthas withdrawn the very last sentence but, on the other hand, he seemsto confirm, rather than withdraw, the rest of his statements containedin that passage;Whereas, consequently, the Applicant has not satisfied the conditionsindicated to him by the Commission; and whereas in these circumstancesthe Commission considers that the Applicant has abused the right ofpetition within the meaning of Article 27, paragraph (2) (Art. 27-2)of the Convention;Whereas the Commission observes that in the present case the Applicanthas also alleged that there had been certain interferences with hisright to correspond with the Commission; whereas these allegationsraise an issue under Article 25 (Art. 25) of the Convention and do notconcern the admissibility of the Application itself;Whereas, nevertheless, the Commission has had in mind the fact that theApplication is to be declared inadmissible as being an abuse of theright of petition; whereas, in these particular circumstances, theCommission does not find it necessary to examine further the questionwhether or to what extent there has been undue interference with theApplicant's effective exercise of his right to present his case to theCommission.Now therefore the Commission1. declares the Application INADMISSIBLE.2. decides to take no further action in regard to the allegationsrelating to the Applicant's correspondence with the Commission.
THE FACTSWhereas the facts of the case as presented by the Applicant may besummarised as follows:The Applicant is a German citizen, born in 1926 and at present detainedin prison at Düsseldorf.1. The Applicant states that, on .. March, 1964, he was detained onremand (Untersuchungshaft) on suspicion of aggravated theft. When hewrote to the Commission on 17th July 1966, he stated that he was stillin detention on remand and that an indictment had not yet been issuedagainst him. By letter of 19th December, 1966, he confirmed that he wasstill in detention on remand but indicated at the same time that he hadbeen convicted in respect of certain charges by a court which heconsidered to be prejudiced against him.The Applicant has not submitted full information regarding theproceedings before the German courts in respect of his detention.In his first letter to the Commission (21st May, 1965), he indicatedthat proceedings regarding his detention (Haftprüfung) had taken place,but he complained that he had not been allowed to express his views inthese proceedings ("in keiner Fase der Haftprüfung hat man michsprechen lassen, sondern man hat mir den Mund verboten"). In hisapplication form (11th September, 1965) he also referred to his appealsagainst detention (Anträge auf Haftüberprüfung) but without providingany details about them.In a subsequent letter to the Commission (17th July, 1966), he statedthat he had repeatedly applied to the Regional Court (Landgericht) ofDüsseldorf for an oral hearing regarding the continuation of hisdetention. This had not been granted until .. March, 1966, that isafter two years' detention and, moreover, his lawyer had not been askedto appear at the hearing.2. The Applicant states that he is innocent in respect of the offensesof which he is suspected and that there is evidence to prove hisinnocence. However, as the Public Prosecutor has failed to indicate thedate of the alleged offence, the Applicant is unable to present a validalibi and, if he should try to do this, the Public Prosecutor wouldonly state that the offence might have been committed on anotheroccasion.The Applicant also complains that the authorities have tried to obtaina confession from him by using improper methods, such as blackmail andill-treatment.In particular, he alleges that he has been ill-treated during hisdetention both in connection with his interrogation by the police andotherwise in prison. As a result of this alleged ill-treatment, hesuffered serious injuries. His left eye was so badly injured that hehad to be treated at the prison hospital for six months and the sightof that eye has remained affected.The Applicant further complains that, in order to aggravate hisdetention, the prison authorities have refused, contrary to generalpractice, to let him have books from the prison library or to give himpermission to use a transistor radio. He also complains that he has notbeen allowed to be represented by a lawyer appointed by himself butonly by a lawyer appointed ex officio in whom he has no confidence, andthat the prison administration has interfered with his right of defenceby suppressing his letters to lawyers and public authorities.3. The Applicant alleges violations of Articles 3, 6, paragraphs (1),(2) and (3), 8 and 9 of the Convention.Proceedings before the CommissionWhereas the proceedings before the Commission may be summarised asfollows:I. Questions of interference with the Applicant's right to correspondwith the Commission (Article 25 of the Convention)1. The Applicant first wrote to the Commission on 21st May, 1965, andhe received in reply the usual information regarding the submission ofan application to the Commission.By letter of 21st October, 1965, he informed the Commission that he hadtried to send his formal application to the Commission but that it hadbeen seized by the German authorities. He also enclosed a copy of adecision of .. September, 1965, by which a letter written by theApplicant to the Council of Europe had been stopped ("von derBeförderung ausgeschlossen") by the Regional Court of Düsseldorfbecause of defamatory contents.On 14th December, 1965, the Commission decided to request informationfrom the Federal Government in regard to the seizure of his letter.On 10th February, 1966, the Government informed the Commission that theRegional Court of Düsseldorf had, after "a new examination", revisedits decision of .. September, 1965, by which the Applicant's letter hadbeen seized.In the meanwhile, the Commission's Secretary had received, on 31stJanuary, 1966, the Applicant's application form dated 11th September,1965, and had duly registered it.2. On 15th June, 1966, the Commission's Secretary received from theApplicant a letter containing further submissions in regard to thepresent Application. This letter seemed to have been originally dated16th November, 1965 but this date had apparently been changed to 8thJune, 1966.In reply, the Secretary asked the Applicant when he had actuallywritten and sent the letter which had been received on 15th June, 1966.The Applicant replied that he had written and sent this letter on 16thNovember, 1965 but that it had then apparently not been forwarded andthat, subsequently, the date had been changed.3. The Applicant indicated that he could not in his letters give theCommission full information in regard to his complaints since he wouldthen run the risk of being subjected to reprisals. He also stated thathe did not find it advisable to enclose any documents with his lettersto the Commission as he could not be certain as to whether suchdocuments would ever reach the Commission.The Applicant therefore requested that the Commission should appointa "neutral" person to whom he could personally confide information anddocuments which he wished to submit to the Commission.II. Insulting language in the Applicant's submissionsOn 6th October, 1966, the Commission observed, during its examinationof the Application, that in some of his submissions the Applicant hadmade use of insulting and provocative language. The Commission,therefore, decided to inform the Applicant that, unless he was preparedto withdraw or amend certain passages of his submissions, it wouldreject the whole Application as being an abuse of the right of petitionwithin the meaning of Article 27, paragraph (2), of the Convention.The passage concerned were the following:(a) In his application form of 11th September, 1965, he wrote: "Theyreproach me of having been an opponent of the Hitler Reich and callthis a bad past. But I reproach the Court of working as Nazi judges inthe German Courts" (Meine Widerstandsbewegung gegen das Hitlerreichwirft man mir als schlechte Vergangenheit vor. Ich dagegen werfe demGericht vor, dass sie als Nazi-Richter in den deutschen Gerichtenwalten).(b) In his letter of 13th April, 1966, he wrote: "My opinion in thisrespect is that one can only obtain right here by means of money andthat otherwise one is in a bad position" (Meine Auffassung zu diesenDingen ist, dass man sich hier nur Recht durch Geld verschaffen kannoder sonst benachteiligt ist).(c) In his letter which arrived on 15th June, 1966, he wrote: "I allegethat the German Justice makes use of the meanest methods which areworse than those of the Hitler Reich in order to break my resistance.For this reason, I can have no respect for German Justice, since itsuppresses in a horrible manner and with impermissible methods anybetter feelings of an individual ... .They tell me that we live in aState founded on law, but I doubt this. I have more respect for aprostitute than for German Justice" (Ich mache der deutschen Justiz denVorwurf, dass sie die gemeinsten Mittel, die das Hitlerreichübersteigen, anwendet um mich mürbe zu machen. Ich kann aus diesemGrunde keine Achtung vor der deutschen Justiz haben, weil sie mitunerlaubten Mitteln jede bessere Regung eines einzelnen Menschengrausam unterdrücken tut ... . Sie sprechen mich an, wir leben in einemRechtsstaat, aber ich stelle das in Zweifel. Achtung habe ich vor jederDirne [mehr] als vor der Justiz in Deutschland.)By letter of 9th January, 1967, the Applicant replied in the followingway:"(a) The application form of 11th September, 1965 is changed so as toindicate that I only wanted to show the method used in this respect.(b) The letter of 13th April, 1966 is changed so as to indicate thatthese are facts which can be proved by recent newspaper reports.(c) The last sentence is deleted: 'I have more respect ...' The methodof treating people in detention on remand is proved by the trials inCologne and Hamburg. May complaints in this regard have had no effect."-----------------------------------------------------------------[(a) Beschwerdeformular vom 11.9.65 wird dahin geändert, dass ich nurdie Methode wie man das macht, aufzeigen wollte.(b) Brief vom 13. April 1966 wird dahin geändert, dass dieses Tatsachensind, die man durch neueste Zeitungsberichte belegen kann.(c) Der letzte Absatz wird gestrichen: "Achtung habe ich vor ..." DieMethode, wie man in U-Haft behandelt wird, beweisen die Prozesse inKöln und Hamburg. Meine Anzeigen hat man diesbezüglich fallengelassen.]-----------------------------------------------------------------THE LAWWhereas Article 27, paragraph (2) (Art. 27-2) of the Conventionprovides that "the Commission shall consider inadmissible any petitionsubmitted under Article 25 (Art. 25), which it considers an abuse ofthe right of petition";Whereas, in the present case, the Applicant's pleadings contained threepassages which were provocative and insulting to the respondentGovernment; whereas, therefore, the Commission invited the Applicantto withdraw or amend these passages; whereas the Commission alsoinformed him that, unless he was prepared to withdraw or amend thesepassages, it would reject the whole Application as being an abuse ofthe right of petition within the meaning of Article 27, paragraph (2)(Art. 27-2) of the Convention;Whereas the Applicant has, by letter of 9th January, 1967, submittedhis reply to this statement by the Commission;Whereas the Commission considers that, in respect of the first twoobjectionable passages quoted above, the Applicant's reply cannot beconsidered to constitute a withdrawal or an acceptable amendment;Whereas, in respect of the third passage, it is true that the Applicanthas withdrawn the very last sentence but, on the other hand, he seemsto confirm, rather than withdraw, the rest of his statements containedin that passage;Whereas, consequently, the Applicant has not satisfied the conditionsindicated to him by the Commission; and whereas in these circumstancesthe Commission considers that the Applicant has abused the right ofpetition within the meaning of Article 27, paragraph (2) (Art. 27-2)of the Convention;Whereas the Commission observes that in the present case the Applicanthas also alleged that there had been certain interferences with hisright to correspond with the Commission; whereas these allegationsraise an issue under Article 25 (Art. 25) of the Convention and do notconcern the admissibility of the Application itself;Whereas, nevertheless, the Commission has had in mind the fact that theApplication is to be declared inadmissible as being an abuse of theright of petition; whereas, in these particular circumstances, theCommission does not find it necessary to examine further the questionwhether or to what extent there has been undue interference with theApplicant's effective exercise of his right to present his case to theCommission.Now therefore the Commission1. declares the Application INADMISSIBLE.2. decides to take no further action in regard to the allegationsrelating to the Applicant's correspondence with the Commission.