X. v. THE FEDERAL REPUBLIC OF GERMANY - 2516/65 [1966] ECHR 4 (23 May 1966)

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X. v. THE FEDERAL REPUBLIC OF GERMANY - 2516/65 [1966] ECHR 4 (23 May 1966)
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant, a German citizen, is at present detained in prison atBielefeld. From his lengthy statements and the numerous documentssubmitted by him, the facts of his case appear as follows:The Applicant was born in 1915 near Magdeburg and grew up in Germanyuntil his parents moved to Poland about 1930. Later he served both inthe Polish Army (1937 - 1939) and in the German Navy (1944 - 1945).After the war the Applicant remained in Germany and, in 1962, hemarried Y.In 1964, the Applicant's wife instituted divorce proceedings and, on.. April, a hearing of the parties took place before the Regional Court(Landgericht) of Bielefeld. After the hearing the Applicant left theCourt together with his wife and, on the street, he hit her on the headand she fell on the pavement. He then stabbed her with a paper knifeand wounded her with some 18 stabs in the head, neck, shoulder, breast,arm, thigh and foot. By the intervention of other persons he wasprevented from doing further injury.The Applicant was arrested on the same day and on .. April 1964, awarrant for his arrest was issued in which it was stated that he wassuspected of attempted murder. In October 1965, the Applicant wasformally charged (angeklagt) with attempted murder and, on .. November1965, he was sentenced by the Regional Court of Bielefeld to threeyears' imprisonment for dangerous assault and battery. His appeal(Revision) from this judgement was dismissed by the Federal Court(Bundesgerichtshof) on .. April 1966.The Applicant's complaints and the corresponding facts appear asfollows:I. Length of detention pending trial and pending appeal1. A warrant for the Applicant's arrest (Haftbefehl) was issued by theDistrict Court (Amtsgericht) of Bielefeld on .. April 1964. It wasstated that the Applicant was strongly suspected of attempted murderand that there was a danger that he might escape unless remanded intocustody; reasons were given for these findings.2. On .. 1965, the Applicant's lawyer, Rechtsanwalt Z. applied for thecancellation of the detention order. He submitted that the Applicantwould probably not be convicted on a charge of attempted murder (Mord)under Article 211 or attempted manslaughter (Totschlag) under Article212 of the Criminal Code (Strafgesetzbuch). He further pointed outthat, under Article 223a of the Code the minimum sentence for dangerousassault and battery was two months' imprisonment.This application was refused by the Regional Court on .. 1965 and, onappeal (Beschwerde) by the Court of Appeal (Oberlandesgericht) of Hammon .. 1965. The Court of Appeal confirmed the finding of the RegionalCourt that the Applicant was strongly suspected of having attacked hiswife with an intention to kill her and stated with reference to Article120 (new version) of the Code of Criminal Procedure(Strafprozessordnung) that the length of the Applicant's detentionpending trial (at that time 13 months) was not out of proportion to thesentence which he might receive if convicted on a charge of attemptedmurder or manslaughter.The Applicant then instructed his lawyer to lodge a further appealagainst the decision of the Court of Appeal. On .. 1965, Mr. Z repliedthat no further appeal lay under Article 304, paragraph (4), of theCode of Criminal Procedure. Nevertheless, the Applicant addressedseveral petitions to the Federal Court, which by letters of ... and ...1965, informed him that it was not competent to deal with thesecomplaints.3. In the meanwhile, the Applicant had, without successa) brought criminal charges of "breach of trust in the exercise of hisduties" ("Untreue im Amt") against the investigating judge(Untersuchungsrichter), Dr. A;(b) challenged the judges of the Regional Court including theinvestigating judge on the ground of partiality and requested thetransfer of his case to another court;(c) brought criminal charges of defamation against the judges of theRegional Court and the Court of Appeal.4. On ... 1965, the investigating judge declared the preliminaryinvestigation (Voruntersuchung) closed. He stated that theinvestigation had been particularly difficult and that it had beendelayed by several petitions of the Applicant which had necessitatedthe transmission of the case-file to other authorities.5. On ... 1965, the Court of Appeal made a new order for the continueddetention of the Applicant. This decision was taken underArticle 121 (new version) of the Code of Criminal Procedure whichstates as follows:"(1) As long as no sentence imposing imprisonment or some preventiveand rehabilitation measure involving a deprivation of liberty has beenpassed, a period of remand in custody for the same offence may exceedsix months only in cases where the special difficulty or extent of theinvestigations or some other important reason renders the passing ofjudgement temporarily impossible and justifies such prolongation.(2) In the cases mentioned in paragraph (1), the warrant of arrestshall be withdrawn at the expiry of six months unless its execution issuspended under Article 116 or the Court of Appeal orders thecontinuance of the remand in custody...."-----------------------------------------------------------------------("(1) Solange kein Urteil ergangen ist, das auf Freiheitsstrafe odereine freiheitsentziehende Massregel der Sicherung und Besserungerkennt, darf der Vollzug der Untersuchungshaft wegen derselben Tatüber sechs Monate hinaus nur aufrechterhalten werden, wenn diebesondere Schwierigkeit oder der besondere Umfang der Ermittlungen oderein anderer wichtiger Grund das Urteil noch nicht zulassen und dieFortdauer der Haft rechtfertigen.(2) In den Fällen des Absatzes 1 ist der Haftbefehl nach Ablauf dersechs Monate aufzuheben, wenn nicht der Vollzug des Haftbefehls nachParagraph 116 ausgesetzt wird oder das Oberlandesgericht die Fortdauerder Untersuchungshaft anordnet....")-----------------------------------------------------------------------The Court of Appeal, considering the result of the preliminaryinvestigation and, in particular, the Applicant's own statements, foundthat he was strongly suspected of attempted manslaughter. Having regardto the sentence which he might receive and pointing out that he had nofixed address and that his marriage was ruined, the Court further foundthat there was a danger that he might escape unless remanded incustody. With regard to the length of the Applicant's detention (atthat time 16 months), the Court held that it was not out of proportionto the sentence which he might receive; in this connection, the Courtobserved that the minimum sentence for attempted manslaughter was oneyear and three months penal servitude, but that there was no reason toassume that the alleged crime of the Applicant was a particularly lightcase. Finally, the Court found that there were certain "importantreasons" within the meaning of the above Article 121, paragraph (1),of the Code of Criminal Procedure which rendered the passing ofjudgment temporarily impossible and justified the prolongation of theApplicant's detention on remand. These reasons were: the delay causedby the preparation of an expert opinion on the question of theApplicant's criminal responsibility and, secondly, the introduction bythe Applicant of several unfounded petitions.6. the indictment (Anklageschrift) was completed on ... 1965 and, on... the Applicant was committed for trial.7. The trial lasted from .. to .. November 1965.8. In its judgement of .. November 1965, the Regional Court decidedthat the period spent by the Applicant in detention pending trialshould be counted as part of his sentence.9. New orders for the continued detention (pending appeal) of theApplicant were made by the Regional Court on ... 1965, ... and ...1966, and by the Court of Appeal on ... 1966.10. The Federal Court decided on .. April 1966, in respect of theperiod which the Applicant had spent in detention during his appealproceedings (.. November 1965, until .. April 1966) that the part ofthis period which exceeded three months should be counted as part ofhis sentence.With regard to his detention pending trial and pending appeal, theApplicant now alleges violations of Article 5, paragraph (4), andArticle 13 of the Convention.II. Conviction and sentenceOn .. November 1965, the Regional Court convicted the Applicant on acharge of dangerous assault and battery. Taking into account hisprevious convictions on similar charges, the Court sentenced him tothree years' imprisonment.The Applicant introduced both an appeal (Revision) and a constitutionalappeal (Verfassungsbeschwerde) from this judgement. His appeal wasdismissed by the Federal Court on .. April 1966, and his constitutionalappeal was declared inadmissible by the Federal Constitutional Court(Bundesverfassungsgericht) on ... 1966.With regard to his conviction and sentence by the Regional Court, theApplicant admits that he attacked and wounded his wife in the waydescribed above. He states, however, that he was provoked by her andcomplains:1. that the Regional Court failed to summons certain witnesses as tothe character and general behaviour of his wife;2. that his sentence was excessive;3. that the judgement is the result of a conspiracy against him whichwas motivated by his Polish origin; and4. that Rechtsanwalt Z, who had been appointed by the Court to defendhim, failed in the exercise of his duties.The Applicant alleges violations of Article 6, paragraphs (1) and (3),sub-paragraph (d), and Articles 7 and 14 of the Convention.III. Divorce proceedingsOn ... 1965, the Applicant's wife was granted a divorce by the RegionalCourt of Bielefeld. The Applicant's appeal (Berufung) from thisdecision is pending before the Court of Appeal. His constitutionalappeal against the judgement of the Regional Court was declaredinadmissible by the Federal Constitutional Court on ... 1966.The Applicant complains that the judges of the Regional Court refusedto summons certain witnesses on his behalf and that various lawyers whorepresented him in the divorce proceedings, failed in the exercise oftheir duties.He alleges violations of Article 6, paragraphs (1) and (3),sub-paragraph (d), and Article 8 of the Convention.IV. Criminal charges brought by the ApplicantVarious criminal charges were brought by the Applicant against:1. the judges of the Regional Court and the Court of Appeal who wereconcerned with the criminal proceedings against the Applicant (seeParts I and II above);2. the judges of the Regional Court in the divorce proceedings (seePart III above);3. a judge of the District Court (Amtsgericht) of Bielefeld (who hadrefused the Applicant's petition that his wife should be put underguardianship);4. the Public Prosecutor who participated in the trial of theApplicant;5. another Public Prosecutor (who had refused to deal with a petitionof the Applicant on the ground that it had been drafted in improperterms);6. Mr. Z, the lawyer who defended the Applicant at his trial;7. one of the lawyers who represented the Applicant in his divorcecase;8. the Applicant's wife;9. his stepson; and10. several witnesses who had given evidence in the above proceedingsbefore the Regional Court.In all these cases, the Public Prosecutor refused to instituteproceedings and the Applicant's appeals (Beschwerden) to theAttorney-General (Generalstaatsanwalt) remained unsuccessful.V. Correspondence (Article 8 of the Convention)1. On ... 1965, the Regional Court, finding that the Applicant'scorrespondence had become too voluminous, decided that he should onlybe permitted to write one letter per week. This limitation did notapply to his correspondence with his lawyer, the Office of the PublicProsecutor and the Court.With reference to its above decision, the Regional Court refused toforward 31 letters of the Applicant which were consequently returnedto him. These letters were addressed to: an uncle of the Applicant inPoland, the Federal Railways (Bundesbahn), Cardinal Jäger, the JewishReligious Community (Jüdische Kultusgemeinde), two lawyers inDüsseldorf, Countess Rosen, Mr. Mikolajewski of Düsseldorf, and 22witnesses whom the Applicant wished to call.2. In respect of three letters written by the Applicant to his unclein Poland, the Court found that they contained offensive and defamatorystatements and decided that they should consequently not be forwarded(decision of the investigating judge dated ... 1965, and decisions ofthe Criminal Chamber dated ... 1965, and ... 1966).3. Two letters which the Applicant addressed to witnesses, who had beensummonsed to give evidence at his trial, were stopped by the RegionalCourt on the ground that they might influence these witnesses (decisionof --- 1965).[/align]

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[align=left]The Applicant alleges violations of Articles 6, 8 and 10 of the
Convention.

VI. Complaints concerning treatment in prison

1. A petition by the Applicant for his transfer to another remand
prison was refused by the Regional Court on --- 1965.

2. Several petitions by the Applicant, in which he objected to his
cell-mates and requested to be housed with other remand prisoners, were
granted by the prison administration. Two further applications of the
same kind were dismissed by the Regional Court on --- and --- 1965.

3. The Applicant's requests that arrangements should be made for his
son Peter (aged 3 years) to visit him in prison were refused by the
Regional Court on --- and --- and by the District Court on --- 1965.

4. On --- 1965 the Regional Court rejected as ill-founded the
Applicant's complaint that the competent Social Officer (Fürsorger) had
failed in the exercise of his duties.

5. The Applicant's objections against the prison physician and his
request to be treated by another doctor were dismissed by the Regional
Court on --- 1966.

With respect to the above decisions of the District Court and the
Regional Court, the Applicant alleges violations of Articles 3 and 8
of the Convention.

THE LAW

Whereas, with regard to the Applicant's complaints concerning the
length of his detention pending trial, Article 5, paragraph (3)
(Art. 5-3), of the Convention states that everyone arrested or detained
in accordance with paragraph (1), sub-paragraph (c) of that Article
(Art. 5-1-c) "shall be entitled to trial within a reasonable time or
to release pending trial"; and whereas the Applicant was arrested on
.. April 1964, and detained pending trial until .. November, 1965, that
is for a period of over one year and seven months; whereas, according
to the constant jurisprudence of the Commission, the question whether
a period of detention pending trial is "reasonable" or not cannot be
decided in abstracto but must be considered in the light of the
particular circumstances of each case (see Application No. 2077/63,
Yearbook of the European Convention on Human Rights, Volume 7, pages
268, 276 and 278);

Whereas, in the present case, the Commission has taken into account
that the Applicant was arrested and detained on reasonable suspicion
of having committed a crime for which a heavy sentence might be
imposed; that a justifiable delay in the investigation against him was
caused by the preparation of an expert opinion on the question of his
criminal responsibility; and that the introduction by the Applicant of
several unfounded petitions, in particular his challenge of all judges
of the Regional Court including the investigating judge, resulted in
further delay; whereas, therefore, an examination of the case does not
reveal that the detention of the Applicant was unduly prolonged by the
authorities; whereas, consequently, it does not disclose any appearance
of a violation of Article 5, paragraph (3) (Art. 5-3), of the
Convention;

Whereas it follows that this part of the Application is manifestly
ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention;

Whereas, with regard to the Applicant's complaints concerning the
duration of the criminal proceedings against him, Article 6, paragraph
(1) (Art. 6-1), of the Convention provides that, in the determination
of any criminal charge against him, everyone is entitled to a "hearing
within a reasonable time"; whereas the Commission has considered the
question whether the period referred to in Article 6, paragraph (1)
(Art. 6-1), should be calculated from the date of the Applicant's
arrest (.. April 1964) or only from the date on which he was formally
charged ( ... 1965), and, further, whether this period includes both
the Applicant's trial at first instance up to the Regional Court's
judgement of .. November 1965 and his appeal proceedings before the
Federal Court, which lasted until .. April 1966; whereas the Commission
does not consider it necessary to decide this question in the present
case; whereas it finds that, even if the period concerned was
calculated as running from .. April 1964, until .. April 1966, Article
6, paragraph (1) (Art. 6-1), has not been violated in regard to the
time taken up by the criminal proceedings against the Applicant;

Whereas, in this respect, the Commission has again taken into
consideration the grounds set out above in its finding regarding
Article 5, paragraph ( ) (Art. 5); whereas it follows that this part
of the Application is also manifestly ill-founded within the meaning
of Article 27, paragraph (2) (Art. 27-2), of the Convention;

Whereas the Applicant also complains of his conviction and sentence and
of his divorce proceedings; whereas, in so far as these complaints are
directed against his lawyers, it results from Article 19 (Art. 19) of
the Convention that the sole task of the Commission is to ensure the
observance of the engagements undertaken in the Convention by the High
Contracting Parties, being those Members of the Council of Europe which
have signed the Convention and deposited their instruments of
ratification; whereas, moreover, it appears from Article 25, paragraph
(1) (Art. 25-1) of the Convention that the Commission can properly
admit an application from an individual only if that individual claims
to be the victim of a violation of his rights under the Convention by
one of the Parties which have accepted this competence of the
Commission; whereas it results clearly from these Articles that the
Commission has no competence ratione personae to admit applications
directed against private individuals;

Whereas it follows that this part of the Application is incompatible
with the Convention within the meaning of Article 27, paragraph (2)
(Art. 27-2) (see Application No. 1599/62, Yearbook of the European
Convention on Human Rights, Volume 6, pages 348, 356);

Whereas, in so far as the above complaints give rise to the question
whether the Regional Court failed to ensure that, in the criminal
proceedings against the Applicant, his defence was properly carried out
by his lawyer with the consequence that he was not given a fair hearing
within the meaning of Article 6 (Art. 6) of the Convention, an
examination of the case as it has been submitted, including an
examination made ex officio, does not disclose any appearance of a
violation of this right; whereas it follows that, in this respect, the
Application is manifestly ill-founded within the meaning of Article 27,
paragraph (2) (Art. 27-2), of the Convention;

Whereas, in regard to the Applicant's further complaints concerning his
conviction and sentence and his divorce proceedings, an examination of
the case as it has been submitted, including an examination made ex
officio, does not disclose any appearance of a violation of the rights
and freedoms set forth in the Convention and especially in the Articles
invoked by the Applicant; whereas, in respect of the judicial decisions
complained of, the Commission has frequently stated that in accordance
with Article 19 (Art. 19) of the Convention its only task is to ensure
observance of the obligations undertaken by the Parties in the
Convention; whereas, in particular, it is not competent to deal with
an application alleging that errors of law or fact have been committed
by domestic courts, except where the Commission considers that such
errors might have involved a possible violation of any of the rights
and freedoms limitatively listed in the Convention; whereas, in this
respect, the Commission refers to its decisions No. 458/59 (X. v.
Belgium - Yearbook Volume 3, page 233) and 1140/61 (X. v. Austria -
Collection of Decisions of the Commission, Volume 8, page 57); and
whereas there is no appearance of a violation in the proceedings
complained of; whereas it follows that this part of the Application is
also manifestly ill-founded within the meaning of Article 27, paragraph
(2) (Art. 27-2), of the Convention;

Whereas, in regard to the Applicant's complaint that the numerous
criminal charges brought by him both against judges and public
prosecutors and against third persons were not proceeded with by the
Public Prosecutor, it is to be observed that the Convention, under the
terms of Article 1 (Art. 1), guarantees only the rights and freedoms
set forth in Section I of the Convention; and whereas, under Article
25, paragraph (1) (Art. 25-1), only the alleged violation of one of
those rights and freedoms by a Contracting Party can be the subject of
an application presented by a person, non-governmental organisation or
group of individuals; whereas otherwise its examination is outside the
competence of the Commission ratione materiae; whereas neither the
right to have criminal proceedings instituted against judges and public
prosecutors nor the right to have such proceedings brought against
third persons is as such included among the rights and freedoms
guaranteed by the Convention; whereas it follows that this part of the
Application is incompatible with the provisions of the Convention
within the meaning of Article 27, paragraph (2) (Art. 27-2), of the
Convention;

Whereas, it results from part V of the statement of facts that the
Applicant also complains of certain court decisions concerning his
correspondence; whereas, in this respect, the Commission has had regard
to Article 8 (Art. 8) of the Convention which guarantees to everyone
the right to respect for his correspondence; whereas, however,
paragraph (2) of this provision (Art. 8-2) authorises interference by
a public authority with the exercise of this right where such
interference is in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety
or the economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others; whereas the Commission
has examined the court decisions mentioned in Part V of the statement
of facts; and whereas it finds that these decisions, which interfered
with the Applicant's freedom of correspondence, were justified under
paragraph (2) of Article 8 (Art. 8-2);

Whereas it follows that this part of the Application is manifestly
ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention;

Whereas, in regard to the Applicant's further complaint that the
Regional Court refused his petition for transfer to another remand
prison, it is to be observed that the right claimed is not as such
included among the rights and freedoms guaranteed by the Convention;

Whereas it follows that this complaint is incompatible with the
provisions of the Convention within the meaning of Article 27,
paragraph (2) (Art. 27-2), of the Convention;

Whereas, in regard to the Applicant's complaints concerning the Prison
Doctor, the Social Officer and the cell-mates of the Applicant, en
examination of the case as it has been submitted, including an
examination made ex officio, does not disclose any appearance of a
violation of the rights and freedoms set forth in the Convention and
in particular in Article 3 (Art. 3); whereas it follows that this part
of the Application is manifestly ill-founded within the meaning of
Article 27, paragraph (2) (Art. 27-2), of the Convention;

Whereas, finally, the Applicant also complains of several court
decisions refusing his request to arrange for his son Peter, aged 3
years, to visit him in prison; whereas, in this respect, the Commission
has had regard to Article 8 (Art. 8) of the Convention which guarantees
to everyone the right to respect for his family life; whereas, however,
paragraph (2) of this provision (Art. 8-2) authorises interference by
a public authority with the exercise of this right under certain
conditions; whereas, in particular, such interference is permitted
where it is in accordance with the law and is necessary in a democratic
society for the protection of health or morals; and whereas the
Commission has already held in a previous case that the term
"protection of health or morals" covers not only the protection of the
general health or morals of the community as a whole but also the
protection of the health or morals of individual members of the
community; that, further, the term "health or morals" includes the
psychological as well as physical well-being of individuals; and that,
consequently a court, when determining a parent's right of access to
his child, may properly take into account the need to keep the child
free from serious psychic disturbance (Application No. 911/60, Yearbook
Volume 4, pages 198, 216, 218; see also Application No. 1449/62,
Yearbook Volume 6, pages 262, 266); whereas the Commission finds that,
in the circumstances of the present case, the refusal of the German
courts to arrange for the Applicant's son to visit him in prison was
justified under paragraph (2) of Article 8 (Art. 8-2) by the need to
keep this child free from serious psychic disturbance; whereas it
follows that the remainder of the Application is also manifestly
ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention.

Now therefore the Commission declares this Application INADMISSIBLE.
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