THE FACTS

A. Whereas the basic facts presented by the parties and apparently not

in dispute between them may be summarised as follows:

The applicant is a German citizen, born in 1927, and residing in

Berlin. He is represented by Mrs. Ilona Blumenthal, a lawyer practising

in Berlin.

The applicant has previously lodged two applications with the

Commission. In his first application (No. 2122/64) the applicant

complained, inter alia, of his long detention pending trial. That

application, having been admitted by the Commission,  was referred to

the European Court of Human Rights, which on 27th June, 1968,

pronounced its judgment, holding that there had been no breach of the

Convention. The second application (No. 2868/66) relating to the

applicant's conviction and sentence was declared inadmissible by the

Commission on 31st May, 1967.

On 9th November, 1961, the applicant was arrested, on suspicion of

being involved in offenses of breach of trust, and taken into detention

on remand. On 7th April, 1965, the applicant was convicted by the

Regional Court (Landgericht) of Berlin and sentenced to six years and

six months' penal servitude (Zuchthaus). This decision was subsequently

upheld on appeal by the Federal Court (Bundesgerichtshof) on 17th

December, 1965. Pending appeal the applicant was detained in the Moabit

prison in Berlin.

On 16th November, 1965, while he was still in detention on remand, the

applicant's cell was to be searched. The officers concerned ordered the

applicant to leave the cell for the search. The applicant demanded that

the inspection should be carried out in his presence and refused to

leave the cell. He was then removed by force from his cell and

transferred to an isolation cell (Beruhigungszelle) where he remained

until the morning of 19th November, 1965. When the applicant was

removed from his cell he sustained certain injuries.

On 24th November, 1965, criminal proceedings were instituted ex officio

against unknown persons for inflicting bodily harm in the exercise of

their duty (Körperverletzung im Amt) after reports had appeared in a

Berlin newspaper according to which the applicant had been ill-treated

by warders in the Moabit prison.

On 20th November, 1965, the Prison Governor applied to the Regional

Court for approval of the applicant's detention in the isolation cell.

Invited to make observations in writing, on 2nd December, 1965, the

applicant, through one of his lawyers, opposed the application and

commented on the alleged ill-treatment and the subsequent detention.

On 2nd December, 1965, the applicant's three lawyers addressed

themselves to the Department of Justice (Senator für Justiz) in Berlin,

following statements made by the Department to the press whereby the

applicant's injuries were said to be minimal. The lawyers emphasised

the seriousness of the injuries inflicted on the applicant and pointed

out, inter alia, that they had seen him shortly after he had been

beaten.

The Senior Public Prosecutor (Generalstaatsanwalt) at the Regional

Court decided, however, to discontinue the proceedings against the

prison officers concerned. In a subsequent decree of 14th November,

1966, it was pointed out that the applicant's conduct when refusing to

leave his cell had necessitated the use of force. The prison officers

had denied that they had dealt any blows with their fists or kicked the

applicant. The slight injuries the applicant had suffered during the

violent fight did not confirm his statements to the effect that he had

been totally smashed up (zusammengeschlagen) and it had not been shown

that the prison officers had used excessive force.

The applicant's appeal against this decision was rejected by the

Attorney-General (Generalstaatsanwalt) at the Court of Appeal

(Kammergericht) on 21st December, 1966.

On 30th January, 1967, the applicant lodged an application for a

judicial decision with the Court of Appeal in accordance with Article

172 of the Code of Criminal Procedure (Klageerzwingungsverfahren) and

at the same time applied for legal aid. In this application which

comprised twelve pages, the applicant maintained that he had been

ill-treated and requested that criminal proceedings should be opened

against six prison officers mentioned by name. He referred to certain

medical evidence and witnesses.

The application was, however, declared inadmissible by the Court on

17th March, 1967, on the ground that it did not comply with the formal

provisions under Article 172, paragraph (3) of the Code. In particular,

the Court found that the applicant had failed to submit a complete

statement of the facts on which he founded his charge. Neither had he

indicated what evidence the Public Prosecutor had considered or the

evaluation of this evidence. The applicant had only attacked the legal

conclusions in the decision but had not even specified what particular

part each of the six officers had taken in the alleged ill-treatment.

The Court's decision was communicated to the applicant's lawyer on 5th

April, 1967.

B. Whereas in his application form and observations of 8th January,

1969, the applicant complains of his mishandling by the prison

officers, the conditions under which he was detained in the isolation

cell and the refusal to provide him with adequate medical treatment.

He alleges that this amounted to a violation of Article 3 of the

Convention.

The applicant further complains that the inspection of a cell occupied

by a person on remand in the detainee's absence constitutes a violation

of Article 8 of the Convention.

Whereas the respondent Government has replied to these allegations in

its written observations of 9th and 12th December, 1968.

Whereas the arguments of the parties may be summarised as follows:

I. As to the question of exhaustion of domestic remedies (Article 26

of the Convention)

1. As regards the alleged ill-treatment of the applicant when he was

removed from his cell, the respondent Government submitted that the

obligation to exhaust the domestic remedies under German law require

that proceedings under Article 172 of the Code of Criminal Procedure

have been carried through. In the Government's opinion the applicant

had not satisfied this condition as he failed to submit his application

to the Court of Appeal in the form prescribed by the said Article 172,

paragraph (3), whereby the Court was prevented from admitting the

application.

The respondent Government further referred to the Commission's

jurisprudence according to which the time-limits laid down in domestic

law for the introduction of appeals must be observed by applicants to

the Commission. It seemed justified that the violation of provisions

as to form should be equated with the failure to observe time-limits

because both these defects lead to the inability of domestic courts to

make a decision on the merits. Article 26 of the Convention, however,

exactly purported to ensure that the complaint submitted should be

examined by the domestic authorities to the greatest extent possible

before the Commission could be applied to. If an applicant prevented

domestic examination by failing to observe provisions as to form or

time-limits, his application must be regarded as inadmissible. In

proceedings under Article 172 of the Code, German law made no

requirements that the applicant could not reasonably be expected to

fulfil and consequently even on this ground there would be no

justification for taking a different view.

The applicant maintained that he had exhausted the domestic remedies

within the meaning of Article 26 of the Convention as regards this

complaint. According to him, rejection as inadmissible, as was the case

with his application to the Court of Appeal, was not the same thing as

rejection on the ground of non-observance of a prescribed time-limit.

Whether a time-limit was respected or not could not be a matter of

argument, since it was virtually absolute. By contrast, the question

whether the prescribed procedure  was observed, e.g. the presentation

of the facts in a complete form was relative and in certain

circumstances depended on interpretation and would leave the way open

to arbitrary decisions. It would be perfectly possible for a domestic

court taking a final decision to assume or affirm inadmissibility,

where this was not the case.

Even if one accepted that, as a general rule, the violation of the

procedural provisions did not entitle the domestic courts to take a

decision on the merits, this did not apply in the present case.

Regardless of the inadmissibility of the application under Article 172

of the Code, the possibility of a decision on the merits, namely an

order to reopen investigations, would always have existed.

In any event, the applicant maintained that the Court of Appeal's

rejection of his application was unjustified, as his application, in

fact, did contain a clear factual statement of the incidents concerned,

describing the offenses attributed to the accused officers and to other

officers whose names were unknown, and tendered evidence. The

Commission could, and must, examine whether the Court of Appeal's

decision of 17th March, 1967, was correct. Such examination would show

that all the formalities required under Article 172, paragraph (3), of

the Code were complied with.

Even assuming that the procedural requirements concerned were not

fulfilled, this could not in the applicant's opinion preclude recourse

to the Commission, owing to non-exhaustion of domestic remedies. The

applicant himself had no means of influencing the observance of

procedural rules by his lawyer who had been directed to file the

application to enforce prosecution. Even if the formalities had not

been observed, the investigations could have been continued in the

interest of a complete clarification of the incidents and the

discontinuance of the proceedings must be qualified as unfair.

2. As regards the applicant's complaint concerning his detention in the

isolation cell and the conditions under which he was confined, the

respondent Government also submitted that the applicant had not

exhausted the domestic remedies available to him. The applicant could

have applied to the Regional Court to have the order given by the

competent prison officer that he be taken into an isolation cell set

aside in accordance with Rule 75, paragraph (1), in conjunction with

Rules 62, paragraph (1), and 63, paragraph (1), of the Regulations on

Detention on Remand (Untersuchungshaftsvollzugsordnung).

Moreover, the applicant could have made an application for a judicial

decision by the Court of Appeal in accordance with Article 23 of the

Introductory Act to the Judicature Act (Einführungsgesetz zum

Gerichtsverfassungsgesetz) on the ground that his rights had been

violated by the order to take him into the isolation cell. The

applicant took, however, none of these courses which were open to him.

The Government submitted that it was true that the applicant opposed

the Prison Governor's application of 20th November, 1965, subsequently

to approve his detention in the isolation cell. In the Government's

opinion, the fact that he took part in these approval proceedings could

not, however, be regarded as a proper exhaustion of the domestic

remedies. It could not be left out of consideration that the execution

of the order complained of had been terminated when the approval

proceedings started. Therefore the Regional Court refused to decide on

the justification of the order and merely took cognisance of the

application as is shown by the Court's decision to this effect of 30th

December, 1966. In January 1967, the applicant lodged an appeal against

this decision, mainly on the ground that the prison authorities claimed

damages from him. On 7th July, 1967, the Court of Appeal rejected this

appeal being lodged out of time.

The Government stated that the only way in which the applicant could

have wholly or partly avoided the consequences of the order he impugned

would have been to cause a court decision to be made about his

detention before he was released from the isolation cell.

Finally, to the extent that the applicant's detention could give rise

to a claim for damages, domestic remedies had not been exhausted

wither, as such claims could be brought by way of a civil action before

the ordinary courts.

In reply, the applicant submitted that it was true that, apart from the

statements made in the approval proceedings, he did not apply to the

Court for redress against his confinement in the isolation cell.

Considering that the applicant could only have done so during the

period of his confinement, he had no opportunity either to seek legal

redress or to inform anyone, in particular his defence counsel, of his

confinement in the isolation cell. Nor did anyone inform him of the

rights of which he could have availed himself during that period alone.

To blame the applicant for this would be quite unfair and would even

be tantamount to a venire contra factum proprium. The applicant

therefore considered that he had fulfilled the requirements as to

exhaustion of domestic remedies. He asked that account should be taken

also of the fact that his lawyer discussed his detention in the

isolation cell and the attendant circumstances, particularly the

failure to provide medical attention, in the proceedings before the

Public Prosecutor and in his application under Article 172 of the Code

of Criminal Procedure.

II. As to the allegations under Article 3 of the Convention

As regards the details of the incidents concerned, the applicant

submitted that while he was in detention on remand, his cell and the

possession he kept there were repeatedly inspected. In the summer of

1965 he learned that documents and correspondence had been confiscated

from other detainees and handed over to the police. He was advised by

his counsel that such interference was not permitted and that he was

entitled to be present when his cell was being searched in order to

ascertain that valuables or documents relating to his defence were not

removed. On 16th November, 1965, he was requested by a warder, Aufseher

X., to leave his cell which was to be inspected. The applicant demanded

that the inspection should be carried out in his presence and pointed

out that Polizeiinspektor Y., a senior prison officer, had previously

ordered that the applicant should be allowed to attend such

inspections. X then summoned several other prison officers, including

Y, to the cell. Y ordered the applicant to leave his cell and, when the

applicant tried to argue his point of view, tried to push him out of

the cell.

The applicant then let himself fall to the floor and seized hold of his

bed whereupon Y ordered that the applicant should be removed by force.

He was then brutally beaten and ill-treated in various ways but managed

to hang on to the bed. When a warder hit the applicant's fingers with

a bunch of keys, the applicant was forced to loosen his grip of the

bed. He thought that his fingers had been broken. The applicant was

then taken out into the corridor outside his cell where he was further

beaten and kicked. He shrieked with pain and in order to silence him

Y pressed a towel against his mouth. As a result the applicant became

unconscious.

When the applicant recovered consciousness, he had been brought to a

2 metre x 3 metre isolation cell in the cellar. He was ordered to put

on light clothes in spite of the cold. The cell contained no furniture

and he was forced to eat like an animal on the floor.

The applicant asked to see a doctor. In the afternoon a medical orderly

appeared and dressed his wounded hand which was bleeding heavily. In

the evening he was supplied with three thin mattresses and two thin

blankets. Because of his pains and the cold he was unable to sleep or

eat during the two days he spent in this cell. He also acquired a

serious cold.

On 17th November, 1965, the applicant saw a doctor who gave him some

medicaments for his throat and kidneys which were aching. The

bedclothes were again removed from the cell and, although he was hardly

able to stand up because of a foot injury, he was not provided with a

chair.

The following day the applicant was released from the isolation cell

and told by a warder that he would be charged with assault and violent

resistance, if he lodged a complaint.

The respondent Government first submitted that the applicant's

subsequent conduct seemed to be inconsistent with his allegations that

he was ill-treated by prison officers and thereafter detained in an

isolation cell under degrading circumstances.

In this respect the Government referred to a statement made by the

applicant himself in his submission to the Regional Court of 2nd

December, 1965, according to which the applicant apologised to the

warder X, for the trouble immediately after his release from the

isolation cell on 18th November, 1965, declaring that he regretted the

fuss.

The Government further pointed out that contrary to the applicant's

original allegation on his application form, the criminal proceedings

against the staff of the Moabit Prison were not the result of charges

laid by him but had been instituted ex officio. Reference was further

made to statements by the applicant that he was not interested in any

criminal prosecution of the officers concerned until, in February 1966,

claims for damages had been made against him. His subsequent conduct

showed that he did not attach any particular importance to the alleged

ill-treatment.

The Government stated that in view of these circumstances the version

of the events of 16th to 18th November, 1965, now given by the

applicant seemed to be incredible. Instead the Government referred to

the findings by the Department of Justice in Berlin according to which

the applicant had staged a fit of rage when asked to leave the cell and

struck about him, and acted like mad. In doing so he had kicked an

officer in the belly, the officer then was unfit for duty on this

account for ten days. By reason of his conduct it had been necessary

to take him to an isolation cell to quieten him down. In order to

remove him judo techniques had to be used. No disproportionate force

was used. Nor was the applicant beaten. The applicant - like any other

inmate in a similar situation - had to take off all his clothes and

receive special underwear and outer garments. When this happened, the

officers did not notice any bruises on the applicant's body. An

abrasion on his right hand was dressed by a medical orderly. On 17th

November, 1965, the applicant, when seen by a doctor, complained of his

throat and kidneys, but mentioned, however, nothing about any injuries.

On 20th November, 1965, the prison doctor, on an examination, found

three haematoma on the applicant's arms and chest and several

superficial abrasions on the back of the hand. A further examination

by another doctor on 24th November, 1965, showed haematoma traces and

small skin wounds on the fingers of the right hand and on the  outside

of the right leg. With a high degree of probability, these injuries had

been caused by the conduct of the applicant and the necessary breaking

of his resistance, but not by any blows on the part of the officers.

The Government further referred to the investigations by the Public

Prosecutor in the course of which all the prison staff concerned were

interrogated as well as eleven other remand prisoners before the

decision to discontinue the proceeding was taken.

The Government concluded by asking that this part of the application

should in any event be declared inadmissible as being manifestly

ill-founded. The forcible removal of the applicant from his cell was

a measure necessary for the maintenance of discipline; this measure was

not disproportionate and could not be regarded as inhuman or degrading

treatment within the meaning of Article 3 of the Convention.

In his observations in reply the applicant argued that it was obvious

from the injuries he had sustained that these had not been caused

merely by the breaking down of his resistance. Moreover, he stated that

there was nothing which would necessitate the inspection of his cell

in his absence, contrary to the long-standing practice. If such absence

was nevertheless enforced it was unlawful. Therefore resistance to such

measure could not be unlawful and the applicant's action was clearly

justified.

The applicant denied that he had ever "apologised" for his behaviour

but merely said that if he had been more intelligent he would have

given in. It was true that in February, 1966 he had stated that he was

not interested in criminal prosecution of the officers concerned.

However at the time he was still of the opinion that a proper enquiry

would be carried out in the public interest. It was only when he

realised that this public interest was apparently not so great that he

endeavoured to have the investigations reopened.

As regards the respondent Government's argument that the applicant was

unreliable, he referred to conflicting statements made to the press by

the Senator for Justice and the Prison Governor, as to the injuries the

applicant had sustained.

As regards the inaction imputed to him after the incident concerned,

the applicant has submitted that shortly afterwards his appeal was

dismissed and he was transferred to another prison where he was, inter

alia, deprived of his typewriter. He was further depressed over the

rejection of his appeal and the fact that his wife had filed a petition

for divorce.

III. As to the allegations under Article 8 of the Convention

As regards the complaint that the inspection of a cell occupied by a

person in detention on remand in the detainee's absence constituted a

violation of Article 8 of the Convention, the applicant has submitted

that no valid reasons could be given for such a measure. In particular

the applicant stated that prison security could not be endangered by

the prisoner being present at the inspection. A prisoner should be

entitled to check that the search was carried out correctly. In this

respect the applicant referred, inter alia, to the right of witnesses

and occupants to be present when their premises were being searched

under German law (Article 106 of the Code of Criminal Procedure and

Article 759 of the Code of Civil Procedure) and submitted that a person

in detention on remand should not be treated differently.

The respondent Government referred to Rule 61 of the Regulations for

Detention on Remand according to which the room and personal effects

of a remand prisoner may be searched at any time, and emphasised that

there was no provision to the effect that such search must be made only

in the prisoner's presence. In the Government's opinion such a

restriction would be inconsistent with the purpose of detention on

remand. It was in the interest of security that the prisoner should not

notice where and in what manner his personal effects and, above all,

the security installation of his cell were checked.

Nor did any restriction of the right of search follow from the

provisions of Article 106 of the Code of Criminal Procedure and Article

759 of the Code of Civil Procedure cited by the applicant, according

to which the persons concerned are entitled to be present in their

rooms when those rooms are searched or in their home when execution

measures are taken. An analogous application of these provisions was

out of the question if only for the reason that it would be

inconsistent with the purpose of detention on remand, i.e. to prevent

the prisoner from escaping.

Nor did any right of the applicant to be present when his cell was

searched follow from any permission granted on previous occasions.

The German domestic Regulation applied when the applicant's cell was

searched was in consonance with Article 8 of the Convention. This

provision could not be construed as prohibiting the limitations of the

private sphere of a remand prisoner where they necessarily followed

from the purpose of the detention on remand. At least, however, the

search of the cell of a remand prisoner in his absence fell under the

limitations admissible under Article 8, paragraph (2), of the

Convention.

The Government left open the question whether Article 8 of the

Convention would be violated if, during the search of the cell of a

remand prisoner, his mail were read by officers of the institution.

According to the applicant's own statement his mail was not examined.

The applicant's mention of alleged seizure of material for the defence

in the cases of other prisoners was irrelevant as far as his case was

concerned.

THE LAW

Whereas, in so far as the applicant complains of ill-treatment by

prison officers when refusing to leave his cell, it is to be observed

first that, under Article 26 (Art. 26) of the Convention, 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, in order to

comply with Article 26 (Art. 26), the applicant was obliged to lodge

an application under Article 172 of the Code of Criminal Procedure

following the Public Prosecutor's refusal to institute criminal

proceedings against the prison officers concerned; whereas the

respondent Government has further alleged that the applicant did not

satisfy this condition as he failed to submit his application to the

Court of Appeal in the form prescribed by the said Article 172 of the

Code and the Court was thereby prevented from admitting the

application;

Whereas the applicant has maintained that the Court of Appeal's

rejection of his application was unjustified as it did, in fact, comply

with all the formalities required under Article 172, paragraph (3), of

the Code.

Whereas, however, the Commission does not consider it necessary in

particular circumstances of the present case to determine the question

whether the application to the Court of Appeal was sufficient in order

to satisfy the obligation to exhaust all domestic remedies laid down

in Article 26 (Art. 26) of the Convention, nor is it necessary to

decide whether the applicant should have availed himself of any further

remedy;

Whereas, even assuming that the applicant has complied with the

conditions of Article 26 (Art. 26), the Commission finds that an

examination of the case, as it has been submitted, does not lead to the

conclusion that, in the circumstances, the force which was used against

the applicant was excessive and amounted to "inhuman or degrading

treatment" within the meaning of Article 3 (Art. 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, in so far as the applicant's complaints relate to his

detention in the isolation cell and the alleged failure to provide him

with adequate medical care, the question again arises whether the

applicant can be considered to have exhausted all domestic remedies

available to him;

Whereas the Commission once more does not feel called upon to determine

this question since, in any event, an examination of the case as it has

been submitted, including an examination made ex officio, does not lead

to the conclusion that, in the circumstances, the applicant's detention

in the isolation cell during the period concerned involved a breach of

Article 3 (Art. 3) of the Convention; neither does the Commission find

that there is sufficient evidence to support the applicant's

allegations that he was denied adequate medical care for his injuries;

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 so far as the applicant alleges that the inspection of his

cell in his absence amounted to a violation of his rights under Article

8 (Art. 8) of the Convention, it is to be observed that paragraph (2)

of the said Article (Art. 8-2) permits interference with these rights

when such interference is in accordance with the law or is necessary

in a democratic society, inter alia, for the prevention of disorder or

crime;

Whereas in this connection the Commission has had regard to the

respondent Government's submission that interests of security require

that a remand prisoner should not have knowledge of the manner by which

his personal effects and the security installations of his cell are

checked; whereas the Commission is satisfied that the limitations on

the applicant's private life in this respect were fully justified under

Article 8, paragraph (2) (Art. 8-2), of the Convention;

Whereas it again 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;

Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE