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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> K.H. v. the FEDERAL REPUBLIC OF GERMANY - 2004/63 [1966] ECHR 2 (24 May 1966) URL: http://www.bailii.org/eu/cases/ECHR/1966/2004_63.html Cite as: [1966] ECHR 2

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THE FACTS

Whereas the facts presented by the Applicant - excluding those which
relate to the complaints already rejected by the Commission - may be
summarised as follows:
-----------------------------
(1) A partial decision was given on 1 June 1965 but has not been
published.
-----------------------------

The Applicant is a German citizen, born in 1930 and at present detained
in prison in Berlin. He is represented before the Commission by Mr.
Hasso Fügart, a lawyer practising in Berlin.

He alleges that on 28 October 1963 he was ill-treated by prison
officers in the Tegel prison in Berlin and he describes the incident
as follows:

After a dispute between him and a certain Mr. K., an official in the
prison administration, in regard to the refusal of the prison
authorities to forward a letter from the Applicant to the Landgericht,
Mr. K. ordered him to be brought to an isolation cell. Following this
order, his arms were twisted behind his back by the prison officers L.
and H. while another prison officer S. hit him and jabbed him with
keys. He was then dragged along like an animal down the three
staircases to the solitary confinement cell. While in this cell, H.,
S. and a third officer named ... entered, and he was pushed into a
corner. Ludwig then choked him from behind so that he could hardly
breathe and S. hit him in the face so that his glasses fell on the
stonefloor and were broken. O., H. and S. then secured him with chains
using much brutality and violence. He was thrown on the floor and an
old scar from a fracture of his head was affected and began bleeding,
as well as his nose. O. then trod on his back in order to pull the
chain even tighter with the result that he had pains in his stomach and
kidneys. He was then pulled up by his hair and handcuffed with equal
brutality. The handcuffs which were so tight that his hands became
swollen were tied to the chain which had already been fastened to his
body. While he was tied up in such a way that he could hardly move for
pain, K . hit his head with a truncheon. His teeth bled and have
subsequently remained loose. He lost consciousness and cannot say what
else was done to him. When he regained consciousness, he was lying on
the floor and had horrible pains in his head, stomach, kidneys and
teeth. He could no longer move his wrists because of the tight
handcuffs. In the afternoon of 29 October, he was taken from the cell
where he had then been lying for 24 hours on the stone floor without
care or medical treatment.

In his original submissions regarding this incident, the Applicant
stated that he had tried to lodge several complaints regarding the
alleged ill-treatment but that these complaints had all been returned
to him under some pretext. The further submissions by the Parties on
the question of exhaustion of domestic remedies are set out below.

Proceedings before the Commission

Whereas the proceedings before the Commission may be summarised as
follows:

On 1 June 1965, the Commission, while declaring other parts of the
present Application inadmissible, decided, in accordance with Rule 45,
paragraph 3 (b), of its Rules of Procedure, to give notice of the
Application, in so far as it related to the alleged ill-treatment, to
the Federal Government and to invite it to submit its observations in
writing on the question of admissibility. The Government was requested,
primarily, to comment on the issue of exhaustion of domestic remedies.

On 21 July 1965, the Government submitted its observations on
admissibility.  The Applicant's reply to the Government's observations
was submitted by his lawyer in a pleading of 1 September 1965 and, in
addition, the Applicant himself submitted a number of letters to the
Commission.  On 10 December 1965, the Commission decided to hold an
oral hearing in the case.

Both Parties submitted further written pleadings, the Applicant's
lawyer on 31 January 1966 and the Government on 4 February 1966.

The oral hearing was held on 11 and 12 February 1966. Following the
hearing, the Commission decided to adjourn its decision on
admissibility and, in the meanwhile, to ask the Government to provide
certain further information and documents.

The Government submitted further information and documents in two
pleadings of 1 April and 9 May 1966. The Applicant's lawyer submitted,
in reply, two pleadings of 6 and 17 May 1966.

The Government also submitted a statement on 20 May 1966. The
Commission decided, however, on 24 May 1966 not to take note of that
statement as it had been submitted after the closing of the
Government's written pleadings.

Submissions of the Parties

Whereas the submissions of the Parties may be summarised as follows:

1. As to the question of the Applicant's withdrawal of his Application

The Government has submitted on 4 February 1966 a photocopy of a
document which states as follows:

"Berlin, 27 January 1964
I hereby declare that I withdraw my submissions of 1 January 1964 to
the Council of Europe in Strasbourg.  Heinz Kornmann"

The Government further explained that this declaration had, by mistake,
been filed with the Berlin authorities instead of being forwarded to
the Commission. In the Government's opinion, this document seemed to
show that the Applicant had not been clear himself as to the effect of
his Application and had not attached any great importance to it. On the
other hand, the declaration of withdrawal was apparently also of
interest in regard to the question whether the Applicant had exhausted
domestic remedies. The fact that he had even withdrawn his Application
with the Commission seemed to support the Government's submission that
he had not exhausted the domestic remedies (as to the Government's
submissions on exhaustion, see below). This declaration might also
indicate that the Applicant himself had doubts as to whether the
allegations made in his Application were well-founded.

The Applicant's lawyer stated that it was not clear whether the
declaration referred to by the Government concerned the incident of 28
October 1963. The declaration might have concerned some other
submissions which had remained in the files of the Berlin authorities.
If, however, the declaration concerned the case of ill-treatment, the
Applicant's own conduct showed that he did not intend to withdraw his
complaint, since, in fact, he had persistently pursued this case.
Moreover, a withdrawal would not prevent the Commission from examining
the case since the Commission's proceedings were not bound by formal
considerations, their purpose being to examine the substance of the
alleged facts.

2. As to the question of exhaustion of domestic remedies (Article 26
of the Convention)

A. Legal remedies available

The Government submitted that, in German law, the alleged acts by
prison officers would constitute the offence of causing bodily harm in
the exercise of official duties (Körperverletzung im Amt). As this was
a criminal offence, the primary remedy at the Applicant's disposal
would be the lodging of a penal charge (Strafanzeige) with the
competent Public Prosecutor (Staatsanwalt) and, if the Public
Prosecutor decided to take no action, he could appeal to the Senior
Public Prosecutor (Generalstaatsanwalt).
If the Senior Public Prosecutor also decided not to institute criminal
proceedings, he could avail himself of the "prosecution enforcement
procedure" (Anklageerzwingungsverfahren) provided for by Article 172
of the Code of Criminal Procedure (Strafprozessordnung). This meant
that the Applicant could have lodged an application with the competent
Court of Appeal, in the present case, the Kammergericht in Berlin.

In the Government's opinion, these proceedings would have constituted
the principal remedies.

The Government also referred to the possibility of lodging an
application to the Kammergericht in accordance with Article 23 of the
Introductory Act to the Judicature Act (Einführungsgesetz zum
Gerichtsverfassungsgesetz) which provides for an administrative appeal
in regard to decisions and measures taken by the prison authorities.

The Government further indicates the possibility of bringing civil
proceedings against the Land Berlin in respect of malfeasance
(Amtspflichtverletzung) by officers of justice. The right to bring such
proceedings is embodied in Article 34 of the Basic Law (Grundgesetz)
and details are given by the relevant provisions of the Civil Code
(Bürgerliches Gesetzbuch), in particular Article 839. Proceedings
should have been instituted before the Landgericht and the right course
for the Applicant would have been to file an application for legal aid
and for the appointment of a lawyer by the Court.

The Government emphasised, however, that the principal remedy in the
present case was a criminal charge lodged with the Public Prosecutor.

The Applicant's lawyer contested the submission that criminal
proceedings were the principal remedy in the present case. He stated
that an application under Article 23 of the Introductory Act to the
Judicature Act was also a remedy which could be considered and, in
fact, it was up to any prisoner who had been ill-treated to decide
which of these two remedies he wished to choose. If he chose an
application under Article 23, he would not have to bring also a
criminal charge.

The Applicant's lawyer did not consider civil proceedings to be an
effective remedy in respect of alleged punishable acts, unless it had
first been established in criminal proceedings that an offence had been
committed. The Courts would never grant legal aid unless this condition
was satisfied.

In regard to criminal proceedings, the Applicant's lawyer submitted
that the appeal from the Senior Public Prosecutor to the Court of
Appeal was not an effective remedy in cases of this kind. He considered
that this remedy which had ben introduced by a 1951 amendment to the
Code of Criminal Procedure was ineffective. The application to the
Court of Appeal must be signed by a lawyer. The appellant has the
possibility of asking for legal aid but this is only granted if his
application is considered to offer some prospect of success and this
would certainly not be the case after two Public Prosecutors had
rejected the charge. The most serious difficulty was, however, that no
lawyer could be found who would be willing to assist an applicant in
such proceedings. No lawyer would sign an application for the
prosecution of prison officers with whom he inevitably had constant
dealings. There was a system according to which, in cases of this kind,
one generally turned to a lawyer practising on another circuit but, in
the present case the Applicant would not have been technically able to
establish contact with such a lawyer. It would have been impossible for
him to find a lawyer who dealt with criminal cases in another town and
who was prepared to represent him before the Kammergericht. It was true
that there existed a possibility to have an "emergency lawyer"
(Notanwalt) appointed. This meant that, if there was no qualified
barrister on the Court circuit who was willing to accept a case, the
Presiding Judge of the Court could appoint a lawyer to take up the
case. But current jurisprudence - which, however, was in dispute - did
not allow the appointment of an "emergency lawyer" in the "prosecution
enforcement procedure". Moreover, if an application was lodged with the
Court of Appeal, the chance of success would be insignificant (less
than one per thousand) when two Public Prosecutors had already rejected
the charge.

The Applicant's lawyer added that, on principle, he himself refused to
represent his clients in such proceedings before the Kammergericht
since, in any case, they offered no chance of success. He did not
remember whether the Applicant had asked him to assist him in
proceedings before the Kammergericht but thought it possible that he
had done so. If so, the Applicant's lawyer had certainly refused to
assist him in accordance with his general principle in these matters.

The Government contested that the "prosecution enforcement procedure"
was without practical importance and referred to the commentary of
Schwarz-Kleinknecht on the Code of Criminal Procedure. In this
commentary there are references to a number of decisions by Courts of
Appeal in regard to Article 172 of the Code of Criminal Procedure. The
Government also referred to certain decisions by which applications
under Article 172 had been granted. Moreover, if the Applicant was
unable, for lack of funds or any other reason, to find a lawyer to take
such an appeal in hand within a month, he had the possibility,
according to Article 299 of the Code of Criminal Procedure, to place
this fact on the record of the Amtsgericht, and this would constitute
a due observance of the time-limit. It was not understandable on what
ground the Applicant's lawyer believed that no lawyer would have been
willing to assist the Applicant in these proceedings, unless their
refusal would be due to the fact that they did not take seriously the
idea of pursuing such a charge. In any case, it had not been shown that
the Applicant tried to find a lawyer to assist him for such purpose.
The Government also submitted that the question whether or not an
"emergency lawyer" could be appointed only arose if legal aid had been
refused since, if legal aid was granted, a counsel would also be
assigned ex officio.

B. Implementation of the legal remedies available

(a) The Applicant stated that, on 10 November 1963, he handed over to
the prison authorities a letter addressed to the Landgericht and
containing a complaint concerning the incident of 28 October 1963. He
added that he received no reply to that letter.

The Government's representative submitted, at the oral hearing, that
a letter from the Applicant to the Landgericht had been sent from the
prison on 15 November 1963 but that no further information was
available in regard to the fate of that letter.

Subsequently, the Government, at the Commission's request, made further
investigations but informed the Commission that the result had been
negative. No letter of November 1963 had been traced, and the
Government referred to the following statement made in this regard by
the Berlin Senator for Justice: "There is a possibility that the letter
of 10 or 15 November 1963 was returned to the Applicant at the time.
It happened several times that Kornmann, when being heard personally,
withdrew his complaint and that the letter containing the complaint was
then returned to him".

The Applicant's lawyer submitted that, in view of the Government's
failure to trace the letter concerned, it had to be assumed, for the
purposes of the present Application, that the Applicant, by sending
this letter, had complied with Article 26 of the Convention.

(b) The Government, while referring to a statement by the Berlin
Senator for Justice, informed the Commission that, on 27 January 1964
the Applicant sent to the Senator a letter in which he described the
incident of 28 October 1963 as he saw it. He withdrew this letter by
a declaration of 3 March 1964 and it was therefore taken to his prison
record.

(c) The Government also informed the Commission that on 11 September
1964 the Applicant submitted to the Public Prosecutor at the
Landgericht a charge (Strafanzeige) in respect of the alleged
ill-treatment; that, on 26 October 1964 the Public Prosecutor at the
Landgericht decided to discontinue the proceedings in respect of that
charge, since the investigation had shown that the prison officers
concerned had acted in the exercise of their official duties; that, on
14 November 1964 the Applicant appealed from that decision; and that
this appeal was rejected on 26 November 1964 by the Senior Public
Prosecutor at the Kammergericht; that, in his decision, the Senior
Public Prosecutor indicated that there was a further appeal to the
Kammergericht; that, however, the Applicant failed to avail himself of
that remedy.

The Government also mentioned that the Applicant complained of the same
incident in a letter of 14 October 1964 to the Senior Public Prosecutor
at the Kammergericht; that this letter was transferred, on 2 November
1964 to the Public Prosecutor at the Landgericht; and that, on 15 March
1965 the Public Prosecutor informed the Applicant that his allegations
had already been examined in connection with the previous proceedings
and that therefore the Public Prosecutor did not find any further
action required.

The Government has also submitted the files of the Public Prosecutor
in regard to the Applicant's complaint. It appears from these files
that, after receiving the Applicant's charge of 11 September 1964 the
Public Prosecutor transmitted the complaint to the Prison Director
(Vorstand der Strafanstalt Tegel) on 6 October 1964 asking him to
submit the comments of the prison officers concerned.

On 14 October 1964 the Prison Director replied by referring to a
previous statement of 4 August 1964 regarding the same incident. In
this statement of 4 August 1964, the Prison Director had stated, in
particular, that on 28 October 1963 the Applicant had committed a
serious breach of prison discipline; that he had shown active
resistance against the prison officer O. and had bitten another prison
officer's hand; and that his resistance had been broken with two
strokes of a truncheon. In this respect, the Prison Director referred
to a short statement by O. dated 7 November 1963. He added that the
Applicant had withdrawn his complaints regarding this incident. The
Prison Director also submitted a statement by a psychiatrist on the
Applicant's mental condition.

The contents of these files do not show that any further investigations
were made by the prosecuting authorities.

The Government has also submitted the Applicant's medical record
relating to his period of detention. It appears from this record that,
while in prison, the Applicant has been under almost continuous medical
treatment. It seems, however, that he did not see the Prison Doctor
between 28 October and 12 November 1963. On the latter date, the
Applicant apparently complained of stomach pains and the doctor gave
him some tablets. There is no appearance of any medical examination
having been carried out in view of the Applicant's allegations
regarding ill-treatment. On 20 December 1963 the doctor has noted:
"Loosening of teeth". Similar entries appear, however, even before 28
October 1963 and in a certificate of 20 August 1965 it is stated that
those symptoms result from a dental disease from which the Applicant
has been suffering for years.

The Applicant's lawyer submitted that the Applicant had not lodged an
application with the Kammergericht in the form required by Article 172
of the Code of Criminal Procedure since it had not been possible for
him to find a lawyer willing to represent him (as to the details, see
the Applicant's lawyer's submissions as quoted above). He maintained,
however, that the Applicant, without the assistance of a lawyer and
consequently not in the form required by German law, had applied to the
Kammergericht but he provided no details about such a petition by the
Applicant.

(d) The Applicant's lawyers submitted that the Applicant had lodged an
application with the Kammergericht pursuant to Article 23 of the
Introductory Act to the Judicature Act, but he was unable to indicate
the date of this application or the decision, if any, which had been
given by the Kammergericht.

The Government contested that such an application had been lodged,
since neither the Government nor the Applicant's lawyer had been able
to find any trace of such an Application.

3. As to the substance of the complaint

The Government referred to the following statement by the Berlin
Senator for Justice in regard to the incident concerned:

"On 28 October 1963, the principal of House III of Tegel Prison had the
Applicant brought before him at the central office of his house to
question him on the letters which the Applicant had written. When asked
by the principal if the letters should be forwarded, the Applicant
replied in an irritated and insolent manner something to this effect:
'Of course, I wrote the letters in order that they should be despatched
and not for your waste-paper basket'. As a result of this, the
Applicant was taken to an isolated cell (Absonderungszelle). While in
this cell (from about 10.30 a.m. to 13.45 p.m.) he raged and rioted
continuously to such an extent that the quiet and order of the house
were considerably disturbed. For that reason his arms were eventually
tied to his body by three prison officers on orders of the house
guardian. While this was being done, he insulted the three officers by
calling them: 'SS-pigs, raters, blackguards, and gangsters'. Apart from
that, he put up a strong fight when his hands were chained, thereby
wounding one of the officers by a scratch wound. Another officer had
his hand bitten by the Applicant. In order to manage him and to prevent
further injury, the officers broke his resistance by two blows with a
truncheon. On this occasion the Applicant's glasses were damaged. After
being chained, the Applicant was taken to an isolated cell in House I
of the institution".

The Government also referred to certain written statements made on 28
October 1963 by the prison officers concerned.

In subsequent submissions, the Government took the view that comments
on the substance of the case were not required in view of its
submission regarding the non-exhaustion of domestic remedies.

The Applicant's lawyer referred to the Applicant's statement on the
incident as set out above and added certain comments on the
administration of the Tegel Prison and on the situation of the
detainees in that prison in general.

4. Conclusions of the Parties

The Government requested that the Application should be declared
inadmissible for non-exhaustion of domestic remedies.

The Applicant's lawyer submitted that the Applicant had exhausted the
domestic remedies and requested that the Application should be declared
admissible.

THE LAW

Whereas the Government has submitted a declaration of 27 January 1964
in which the Applicant states that he withdraws his submissions to the
Council of Europe dated 1 January 1964; whereas the Applicant's
complaint regarding the alleged ill-treatment on 28 October 1963 was
first submitted to the Commission by a letter dated 1 January 1964;

Whereas, therefore, the Commission finds it clear that the declaration
of withdrawal concerns the Applicant's complaint regarding the incident
of 28 October 1963;

Whereas it has not been indicated to the Commission in what
circumstances this declaration was signed by the Applicant; and whereas
there is some reason to doubt that this declaration was sincere since
the Applicant has subsequently made it clear, on many occasions, that
he wished to pursue the proceedings before the Commission;

Whereas, in regard to a declaration of withdrawal of an application
made before the Commission's decision on its admissibility, the
Commission, in its decision to strike out the application concerned,
has consistently included the following proviso: where "nul impératif
d'ordre général, touchant aux exigences de la Convention ... ne
s'oppose à la radiation du rôle", i.e, where no reasons of a general
character affecting the observance of the Convention necessitate a
further examination of the complaint (see Applications Nos. 2169/64,
2204/64 and 2326/64, Collection of Decisions Volume 14, pages 76 (82
- 83));

Whereas, in one case where a declaration of withdrawal was submitted
after admissibility, the Commission found that the Application
concerned raised problems under the Convention which might extend
beyond the interests of the particular Applicants and decided, on that
ground, to retain it in spite of their declaration of withdrawal (see
Application No. 2294/64 X and Y against the Federal Republic of
Germany);

Whereas the Commission finds that the present Application also raises
problems under the Convention which may extend beyond the interests of
the particular Applicant; and whereas, consequently, the Commission
considers that there are sufficient reasons to examine the
admissibility of the Application irrespective of the possible existence
of a declaration of withdrawal on the part of the Applicant;

Whereas, accordingly, it is not necessary to examine the precise
circumstances in which the declaration was made by the Applicant or the
further question whether the fact that the Applicant has since made it
clear that he intends to pursue the proceedings could affect the
validity of his previous declaration;

Whereas Article 26 (Art. 26) of the Convention provides that the
Commission may only deal with a matter after all domestic remedies have
been exhausted, according to the generally recognised rules of
international law;

Whereas the Respondent Government has submitted that the principal
remedy available to the Applicant was the remedy by means of lodging
penal proceedings (Strafanzeige) with the Public Prosecutor;

Whereas the Commission observes that the Applicant complains of
ill-treatment by prison officers and that the alleged acts constitute
criminal offenses in German law;

Whereas, therefore, the Commission accepts the Government's submission
that, in order to comply with Article 26 (Art. 26), the Applicant was
obliged to lodge a charge (Strafanzeige) with the competent Public
Prosecutor and, in the case of refusal by the Public Prosecutor to
institute criminal proceedings, to use all remedies available under
German law against such decision by the Public Prosecutor;

Whereas, as regards the question of the implementation of this remedy,
the Applicant has stated that, on 10 November 1963, he handed over to
the prison authorities a letter to be forwarded to the Landgericht;

Whereas the Government has confirmed that a letter from the Applicant
to the Landgericht was sent from the prison on 15 November 1963;

Whereas, in spite of investigations having been made, the Government
has failed to obtain any further information as to the fate of that
letter;

Whereas the Commission observes that the contents of the letter of
November 1963 are not known and that, moreover, the letter was not sent
to the Public Prosecutor but to the Landgericht; whereas, consequently,
the Commission does not find it possible to take this letter into
account as being an indication that the Applicant has exhausted
domestic remedies;

Whereas it also appears that the Applicant complained of the incident
concerned in a letter to the Senator of Justice dated 27 January 1964;

Whereas this letter also was addressed to an authority other than the
Public Prosecutor and whereas it appears that the Applicant withdrew
this letter on 3 March 1964; whereas it follows that it cannot be taken
into consideration for the purpose of deciding whether the domestic
remedies have been exhausted;

Whereas it also appears that on 11 September 1964, the Applicant
submitted a charge (Strafanzeige) to the Public Prosecutor at the
Landgericht;

Whereas, on 26 October 1964, the Public Prosecutor decided not to
institute criminal proceedings; whereas, on 14 November 1964, the
Applicant appealed from that decision;

Whereas, on 26 November 1964 his appeal was rejected by the Senior
Public Prosecutor at the Kammergericht;

Whereas the Senior Public Prosector informed the Applicant that, in
respect of that decision, he could lodge an application for a judicial
decision with the Kammergericht;

Whereas the Applicant has in no way shown that he availed himself of
this possibility;

Whereas the Applicant's lawyer has submitted that an application to the
Kammergericht was not to be considered as an effective remedy which had
to be exhausted under Article 26 (Art. 26) of the Convention;

Whereas,in particular, he has stated that the Applicant would not have
been able to find a lawyer willing to represent him in the proceedings
before the Kammergericht and that, moreover, the chance of success in
such proceedings would have been insignificant;

Whereas the Commission considers that, in general, an application
lodged in accordance with Article 172 of the Code of Criminal Procedure
must be considered as an effective and sufficient remedy which has to
be exhausted within the meaning of Article 26 (Art. 26) of the
Convention;

Whereas, in this respect, the Commission refers to its decision in
regard to Application No. 1404/62 (Wiechert v. Federal Republic of
Germany, Yearbook VII, page 124 et seq.);

Whereas, in regard to the circumstances of the present case, the
Commission observes that the Applicant has submitted that it would have
been impossible for him to find a lawyer willing to assist him, but
that, on the other hand, he has in no way shown that he made any
attempts to obtain the assistance of a lawyer in the proceedings
concerned; and whereas, moreover, he has not shown that he applied to
the Kammergericht for legal aid in respect of these proceedings;

Whereas the Commission finds no special circumstances which dispensed
the Applicant from exhausting this particular remedy;

Whereas, consequently, in this particular respect, the Applicant has
not exhausted the domestic remedies within the meaning of Article 26
(Art. 26);

Whereas, in those circumstances, the Commission does not find it
necessary to comment on the submissions of the Parties as to the
existence of other legal remedies in the present case.

Now therefore the Commission declares this Application INADMISSIBLE.