Lexploria

THE FACTS

Whereas the facts may be summarised as follows:

On 13th December, 1968 the Commission examined the above application

and rejected for non-exhaustion of domestic remedies certain complaints

made by the applicant with regard to his treatment in prison and the

alleged interference with his correspondence by the prison authorities.

In his application the applicant also complained that the prison

authorities at Ludwigshafen opened letters addressed to him by the

Commission's Secretary before delivering such letters to him. The

Commission considered this complaint under Article 25, paragraph (1)

in fine of the Convention and found that it did not have full

information in this respect. It therefore decided to invite the

Government of the Federal Republic of Germany to submit any relevant

observations and, in the meanwhile, to adjourn its examination of the

question whether any further action was required in this regard.

On 21st January, 1969, the Commission's Secretary informed a

representative of the German Ministry of Justice of the Federal

Republic, of this decision and requested him to submit any relevant

observations.

On 6th March, 1969, the same representative telephoned the Secretary

and submitted the following comments:

Under Article 33, paragraph (1) of the Ordinance relating to the

Execution of Detention on Remand (Untersuchungshaftvollzugsordnung) all

letters addressed to a person who is detained on remand must be put

before the competent judge or public prosecutor who, according to

paragraph (2) of that provision, is authorised to open and examine such

letters. Unless objection is made as to the contents of the letter

concerned, it will be placed in a special envelope and transmitted to

the prison authorities which, in turn, pass it on to the addressee. No

distinction is made with regard to letters from the Commission or from

other authorities.

On the other hand, under Article 28, paragraph (5) of the said

Ordinance the right of a detained person to lodge complaints with

parliamentary representatives in the Federal Republic or with the

European Commission of Human Rights is unrestricted and, according to

Article 34, paragraph (2), submissions to the Commission may not be

held back. The representative of the Ministry of Justice pointed out

that it followed from these provisions that similarly communications

from the Commission may not be withheld by the German authorities.

He finally referred to the relevant provisions of the European

Agreement relating to persons participating in proceedings of the

European Commission and Court of Human Rights (1), and, in particular,

to Article 3 thereof which provides:

"1. The Contracting Parties shall respect the right of the persons

referred to in paragraph 1 of Article 1 of this Agreement to correspond

freely with the Commission and the Court.

2. As regards persons under detention, the exercise of this right shall

in particular imply that:

(a) if their correspondence is examined by the competent authorities,

its despatch and delivery shall nevertheless take place without undue

delay and without alteration;

(b) such persons shall not be subject to disciplinary measures in any

form on account of any communications sent through the proper channels

to the Commission or the Court;

(c) such persons shall have the right to correspond, and consult out

of hearing of other persons with a lawyer qualified to appear before

the courts of the country where they are detained in regard to an

application to the Commission, or any proceedings resulting therefrom.

------------------------------------------------------------

(1) The Agreement was opened for signature on 6th May, 1969.

------------------------------------------------------------

3. In application of the preceding paragraphs, there shall be no

interference by a public authority except such as is in accordance with

the law and is necessary in a democratic society in the interests of

national security, for the detention or prosecution of a criminal

offence or for the protection of health."

THE LAW

Whereas, the only question which remains to be decided is whether or

not the practice of the German prison authorities, as applied to the

applicant in this case, of opening and reading letters addressed to an

applicant by the Commission's Secretary before delivering such letters

to him is consistent with Article 25, paragraph (1) (Art. 25-1), in

fine, of the Convention; whereas this provision states that those of

the High Contracting Parties who have made a declaration recognising

the competence of the Commission to receive individual petitions

undertake not to hinder in any way the effective exercise of this

right;

Whereas the applicant maintained that it was inconsistent with his

right of individual petition that the prison authorities should open

and read the letters which are addressed to him by the Commission's

Secretary and thus be completely informed about the state of the

proceedings before the Commission;

Whereas the respondent Government argued that such practice was not

only consistent with the relevant provisions of German law but was also

in accordance with the European Agreement relating to persons

participating in proceedings of the European Commission and Court of

Human Rights;

Whereas the Commission finds that the practice complained of is, in

fact, envisaged by Article 3, paragraph Secretary (a), of the European

Agreement relating to persons participating in proceedings before the

European Commission and Court of Human Rights and is implicitly

approved by that provision; whereas, moreover, the Commission observes

that there is nothing in the applicant's allegations to suggest that

he has himself been restricted in his correspondence or otherwise in

any way prevented from submitting his case to the Commission;

Whereas, in fact, he has made substantial submissions and presented his

case in a completely adequate manner;

Whereas, in these circumstances, the Commission considers that the

applicant has not been hindered in the effective exercise of the right

to lodge an application as guaranteed in Article 25, paragraph (1)

(Art. 25-1), in fine, of the Convention;

Now therefore the Commission

DECIDES TO TAKE NO FURTHER ACTION IN RESPECT OF THE ALLEGED

INTERFERENCE WITH THE EFFECTIVE EXERCISE OF THE RIGHT OF INDIVIDUAL

PETITION.

Menu

X. v. THE FEDERAL REPUBLIC OF GERMANY

X. v. THE FEDERAL REPUBLIC OF GERMANY

LEXI