THE FACTS

The facts of the case, as submitted by the applicant, may be summarised

as follows:

The applicant is a German citizen, born in 1936 and presently detained

in prison in Berlin .... Before his arrest he was practising as a

barrister (Rechtsanwalt) in Berlin.

It follows from the applicant's statements and from documents submitted

by him that on .. October 1970 he was arrested on the suspicion of

having helped a prisoner to escape (Gefangenenbefreiung) and of

attempted murder committed with others (gemeinschaftlicher versuchter

Mord). On .. May 1971 he was acquitted of these charges by the Berlin

Regional Court (Landgericht). The proceedings are however still pending

because the decision was quashed, at the appeal (Revision) of the

Public Prosecutor (Staatsanwaltschaft), and the case was sent back to

the Regional Court for a new trial.

Moreover, the applicant is accused of being one of the founders of a

criminal organisation, called Red Army Group (Rote Armee Fraktion =

RAF), and of having, as a member of this organisation, participated in

three bank robberies committed on .. September 1970 in West Berlin. As

regards these charges the applicant was on trial before the Berlin

Court of Appeal (Kammergericht) when he lodged this application.

The applicant states that since his arrest he has been kept in strict

isolation in the prison of Berlin .... He is not only kept in solitary

confinement (Einzelhaft) but also excluded from participating in the

day-to-day affairs of the prison community, such as church-going and

leisure hours.

The applicant further states that he has been deprived by various court

orders of reading material. As an example he has submitted a decision

of .. March 1972 by which the Berlin Court of Appeal ordered that

certain publications (inter alia "Peking Rundschau", "Rote Robe", "rote

Hilfe"), which were sent to the applicant should not be given to him.

As regards the grounds for this measure, the Court referred to a prior

decision of .. February 1972, a copy of which was not submitted by the

applicant.

By decision of .. May 1972 the Investigating Judge of the Court of

Appeal ordered two days of strict confinement (stronger Arrest) for the

applicant because when participating in a leisure hour, he had, despite

the warning of a warder, called to another prisoner and thereby tried

to make contact with him.

On .. August 1972 the Court of Appeal rejected the applicant's request

to lift his solitary confinement.

The Court stated without giving further reasons that the restrictions

imposed on the applicant had to be maintained in order to secure his

safe detention (weil sonst die sichere Verwahrung des Angeklagten

gefährdet erscheint).

In January 1973 the applicant repeated his request to lift his solitary

confinement stating that the investigations carried out against him

were terminated and that consequently there was no longer a danger that

he would suppress evidence (Verdunkelungsgefahr). He also alleged that

the solitary confinement violated his basic rights (Articles 1 and 104

(1), phrase 2 of the Basic Law = Grundgesetz).

This request was rejected by the Court of Appeal on .. February 1973.

The Court stated that the applicant's solitary confinement was

justified under Article 119 (3) of the Code of Criminal Procedure

(StPO) as being necessary in view of the purpose of the detention on

remand and the order in prison.

The Court pointed out that the applicant was strongly suspected of

being a member of a criminal organisation, namely the so-called "Y-Z

gang", and of having, together with other members of this group and by

using weapons, helped a prisoner to escape. The Court stated that the

liberation of political prisoners was one of this group's objects.

In this connection it referred to a decision by the Federal Court

(Bundesgericht) on .. July 1972 in the course of investigation

proceedings against Y and other gang members. According to this

decision the group had in 1971 and 1972 elaborated plans for the

liberation of its detained members.

Furthermore, the Court of Appeal stated that on October 1972 a

prisoner, one W., had admitted to having been promised 250 DM if he

helped the applicant to escape. The plan had been to seize a warder as

a hostage and to demand the applicant's release in exchange for the

warder's release.

The Court found that the statements of prisoner W. were credible

because this prisoner had in fact received 250 DM from an unknown

person. Furthermore he had named two other prisoners who were involved

in the plan and who were in fact corresponding with the applicant.

Moreover, the Court pointed out that the applicant had declared at the

session of .. January 1973 that the arrest of some gang members

including himself would not stop the fight against the criminal system.

He had also proclaimed that one should help all prisoners to escape.

The Court found that these and similar statements made by the applicant

were likely to rouse prisoners against the warders and even to provoke

a revolution in prison.

According to the Court the applicant also had, in the course of the

trial, repeatedly praised the objectives of the "Red Army Group" and

recommended revolutionising the prisons.

The Court concluded that it was the applicant's own behaviour which

made it impossible to lift his solitary confinement.

Finally the Court stated that solitary confinement did not mean that

the applicant was completely isolated from human contact. He was only,

as far as possible, kept apart from the other prisoners. On the other

hand, the Court pointed out, until January 1973 he was granted

319 visiting hours when he saw his relatives and other people. In

addition the applicant conferred with eight different lawyers in 342

visiting hours. The Court also mentioned the daily contacts he had with

the prison personnel. It added that the applicant had his own radio in

his cell and could obtain nearly all the reading material he wanted.

Complaints

The applicant complains that the Court of Appeal did not establish the

facts stated in its above decision in formal proceedings and that

neither his lawyers nor he himself were given the possibility to submit

observations.

He states that the isolation measures are carried out meticulously by

the prison staff (for the slightest infringements of the isolation

rules the applicant is liable to disciplinary detention).

According to the applicant the fact that the prisoner is strictly

forbidden all contact with his fellow prisoners creates a very

different situation for him compared with normal conditions of

detention on remand, for at community events during recreation and on

other occasions as well, the prisoners usually engage in lively

conversation - actually desired and permitted by the prison authorities

- in the course of which they discuss their everyday problems.

These opportunities for communication are denied to the applicant. They

are nevertheless essential to enable a prisoner to stand a long period

of compulsory social isolation without lasting mental effects, since

a minimum of social contacts is one of the elementary needs of every

human being. That enforced and almost complete social isolation leads

ultimately to serious mental damage has long been recognised by

specialists.

The isolation in which the applicant has been kept for more than two

years is bound, sooner or later, to result in serious, irreparable

damage to his health. He is living in a complete social vacuum. The

fact that no obvious symptoms of illness have yet manifested themselves

says much for his powers of resistance but does not rule out the danger

that his health may be seriously affected for the future.

Visits from his defence counsel and relatives cannot make up for the

lack of normal social contact inside the prison. Whilst discussion,

during visits from his counsel, is in any case restricted to questions

of a legal nature, the weekly visits of relatives, limited to about

twenty minutes, take place under the supervision of one of the prison

staff and criminal police officers, so that no spontaneous, natural

conversation is possible.

The applicant points out that other persons detained on remand in the

same prison and accused of being members of the RAF are not subjected

to any comparable reprisals. On the contrary, they are given an

opportunity of maintaining a minimum of normal social contacts by

spending the leisure hour together with other prisoners.

To complete the picture of how his detention on remand is being

enforced, the applicant adds that he is not even allowed to obtain the

reading material he would like from outside the prison. In this respect

he refers to the above cited order of .. March 1972 by the Berlin Court

of Appeal.

In the applicant's opinion the measure taken against him violates

Article 3 of the Convention. They consequently also constitute a breach

of Articles 1 and 104 (1), second sentence, of the Basic Law.

Article 3 of the Convention forbids inhuman treatment, especially of

prisoners. This prohibition is also applicable to the enforcement of

detention on remand. The essence of this provision is to make it

incumbent upon the State, in its dealing with individuals, to see that

no physical or mental injury is inflicted upon them by improper

treatment.

This principle has also been expressed in the second sentence of

Article 104 (1) of the Basic Law of the Federal Republic of Germany,

according to which persons held in custody shall be neither physically

nor mentally ill-treated. Article 1 of the Basic Law also declares the

inviolability of human dignity. This precept, one of the most important

in this country's legal order, is generally also transgressed when a

prisoner is subjected to treatment which is bound to cause lasting

mental injury.

The provision in Article 3 of the Convention and the fore-mentioned

provisions of the Basic Law contain an unrestricted prohibition or

order. Any measure taken by the State against an individual, which is

contradictory to these provisions, the applicant states, is unlawful

and this without any reservation.

This fundamental fact is naturally of particular significance where

detention on remand is concerned; it is entirely in conformity with the

spirit and purpose of detention on remand.

Detention on remand is both a means of safeguarding a State's right of

punishment and an aid to prosecution. Its effects on the detained are

harsh enough as it is since a man's freedom is one of his most highly

prized legal rights. For anyone who is to be presumed innocent (Article

6 (2) of the Convention) detention on remand represents an exceptional

sacrifice for the sake of the State's right of prosecution, a sacrifice

that can be demanded only if the manner of enforcement and the

consequences of the detention are reasonable and bearable. There derive

from this objective limits to the manner of enforcement, which must on

no account be overstepped by the State. These limits are laid down,

inter alia, by Article 3 of the Convention and Article 1 and Article

104 (1), second sentence, of the Basic Law, the provisions of which

must therefore be complied with in all cases; in doubtful cases, this

applies even where they conflict with the purpose of detention on

remand.

According to the applicant this is also the consistent practice of

German criminal justice, according to which the aged and sick must be

spared detention on remand even where this entails a danger of their

absconding.

The treatment of the applicant allegedly infringes the provisions

prohibiting inhuman treatment (Article 3 of the Convention and Article

104 (1), second sentence, of the Basic Law). If a prisoner is kept in

solitary confinement for an excessive length of time against his will

and thus suffers physical or mental injury this must be regarded as

inhuman treatment. There is all the more reason to qualify as "inhuman"

treatment whereby a person, like the applicant, in addition to being

kept in solitary confinement, is isolated from his fellow prisoners in

the manner described above. In these circumstances all the greater heed

must be paid to the fact that treatment which ignores the applicant's

vital needs is bound to result in grave mental injury.

The treatment accorded to the applicant is allegedly contrary also to

the inviolable principle of the protection of human dignity (Article

1 of the Basic Law). This principle enjoins respect for every

individual's personality in all circumstances. This respect must always

be expressed in treatment worthy of a human being. If the applicant is

subjected to long years of complete social isolation, this amounts to

disregard for his most vital, elementary human needs. Such treatment

must therefore, the applicant concludes, be regarded as unworthy of a

human being.

THE LAW

The applicant has first complained that the Court of Appeal did not

establish in formal proceedings the facts on which it based its

decision of .. February 1973. However, under Article 25 (1) (Art. 25-1)

of the Convention, it is only the alleged violation of one of the

rights and freedoms set out in the Convention that can be the subject

of an application presented by a person, non-governmental organisation

or group of individuals. With regard to the present complaint, no right

to formal proceedings as regards the request of a prisoner on remand

to set aside an order for his solitary confinement is as such included

among the rights and freedoms guaranteed by the Convention.

It is true that Article 6 (1) (Art. 6-1) of the Convention provides

that everyone is entitled to a fair and public hearing in the

determination of his civil rights and obligations or of any criminal

charge against him. The Appeal Court's decision, however, nether

determined a civil right of the applicant nor a criminal charge against

him. It did not even concern the lawfulness of the applicant's

detention within the meaning of Article 5 (4) (Art. 5-4) but only dealt

with the question whether the order for the applicant's solitary

confinement should be set aside or not.

It follows that this part of the application is incompatible ratione

materiae with the provisions of the Convention within the meaning of

Article 27, paragraph (2) (Art. 27-2), of the Convention.

The applicant has further alleged that his solitary confinement

violated Article 3 (Art. 3) of the Convention which provides that "No

one shall be subjected to torture or to inhuman or degrading treatment

or punishment".

The Commission also examined this complaint, ex officio, under Article

17 (Art. 17) in conjunction with Article 5 (1) (Art. 5-1) and under

Article 18 (Art. 18) in conjunction with Article 5 (1) (Art. 5-1).

The Commission first wishes to state its opinion that prolonged

solitary confinement is undesirable, particularly where the prisoner

concerned is in detention on remand. In the latter case, if exceptional

reasons have justified such continuous detention, it can obviously best

be shortened by expediting the trial proceedings.

However, in the present case there are two important factors which

qualify the significance of the applicant's solitary detention.

The Commission first notes that the applicant is not completely

isolated but is kept apart from the other prisoners solely for the

purpose of making his detention secure and of thus maintaining order

in the prison. On the other hand, he is allowed to receive visits and

has made ample use of this possibility up to February 1973, as he has

had more than 650 visiting hours according to the uncontested

statements in the Appeal Court's decision of .. February 1973.

Furthermore, the applicant has reading material available and has a

radio in his cell. In reality therefore he is undergoing segregated

rather than solitary confinement.

The Commission secondly accepts that the applicant by his own behaviour

supplied valid reasons to the German authorities for the refusal of his

request to set aside the order for his solitary confinement. The Court

of Appeal stated in this respect that the applicant had declared that

the fight of the Red Army Group against the criminal system would

continue despite his arrest and that all prisoners should be helped to

escape. The applicant has, in his submissions to the Commission, not

contested that he made these remarks.

In view of all these circumstances the Commission does not find that

the applicant's solitary confinement amounts to inhuman or degrading

treatment or punishment within the meaning of Article 3 (Art. 3), of

the Convention.

The Commission, having also considered this complaint ex officio under

Article 5 (1) (Art. 5-1) in conjunction with Article 18 (Art. 18), is

equally satisfied that the authorities were not subjecting the

applicant to solitary, or what was in effect segregated, confinement

for a purpose other than that of bringing him to trial.

An examination by the Commission of this complaint as it has been

submitted, including an examination made ex officio, does not therefore

disclose any appearance of a violation of the rights and freedoms set

forth in the Convention and in particular in Article 3 (Art. 3), or in

Article 5 (1) (Art. 5-1) read in conjunction with either Article 17

(Art. 17) or Article 18 (Art. 18).

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.

For these reasons, the Commission DECLARES THIS APPLICATION

INADMISSIBLE.