THE FACTS

Whereas the facts of the case as presented by the Applicant may be

summarised as follows:

The Applicant is a German citizen, born in 1923 and at present detained

in prison at Bruchsal.

It appears that on .. November, 1958 he was convicted by the Regional

Court (Landgericht) of Stuttgart on numerous charges of aggravated

theft and attempted aggravated theft and sentenced to 61/2 years' penal

servitude (Zuchthaus) and subsequent preventive detention

(Sicherungsverwahrung).

In his original Application as well as in many subsequent letters, he

complains of various measures taken against him by the prison

authorities during his detention at Bruchsal, and he considers that the

German authorities have committed perversion of justice (Rechtsbeugung)

by constantly rejecting his complaints and appeals regarding the

measures taken against him in prison.

His various complaints may be summarised as follows:

1. Detention in a "silence division" (Schweigeabteilung)

The Applicant states that from .. November, 1958 he had to serve his

sentence in a so-called "silence-division" (Schweigeabteilung) at the

prison of Bruchsal. In such a division, prisoners are not allowed to

talk to their fellow-prisoners or to attend cinema performances or

similar entertainments. When in the prison yard, such prisoners are to

be kept at a distance of at least 10 metres from other prisoners.

The Applicant states that he had to serve his sentence in such a

division for almost 6 years. From .. September, 1964, however, he was

allowed to serve his sentence under a less severe prison regime.

He maintains that detention in a "silence division" has necessarily

fatal effects on any person's physical and mental state. In particular,

this is so when a prisoner is kept in such a division and consequently

forbidden to speak to other persons for a long period and in his own

case such prohibition was enforced for six years. He submits that the

establishment of the divisions concerned is not based on any law, but

is a measure taken by the Bruchsal Prison Director on his own

initiative in order to aggravate the sentences imposed by the courts.

In respect of his detention in a "silence division", the Applicant

brought a criminal charge (Strafanzeige) against the prison

administration. This charge was rejected on .. June, 1964 by the Office

of the Public Prosecutor at the Regional Court (Staatsanwaltschaft bei

dem Landgericht) of Karlsruhe and on .. September, 1964 by the Senior

Public Prosecutor at the Court of Appeal (Generalstaatsanwalt bei dem

Oberlandesgericht) of Karlsruhe. In regard to that decision, he lodged

an application for a judicial decision (Antrag auf gerichtliche

Entscheidung) with the Court of Appeal (Oberlandesgericht) of Karlsruhe

and this application was apparently also unsuccessful.

In August, 1964, he lodged a constitutional appeal

(Verfassungsbeschwerde) but, by letter of .. September, 1964 from the

Federal Constitutional Court (Bundesverfassungsgericht), he was

informed that his appeal did not appear to be admissible since he had

not exhausted all other remedies. It was indicated to him that he

should first have availed himself of the remedies laid down in the

Service and Prison Rules (Dienst- und Vollzugsordnung) and that,

finally, he could have lodged an application for a judicial decision

according to Article 23 of the Introductory Act to the Judicature Act

(Einführungsgesetz zum Gerichtsverfassungsgesetz). The Applicant again

wrote to the Federal Constitutional Court and it appears that his

complaint was registered as a constitutional appeal (as to the fate of

that appeal, see below under "Submissions of the Parties").

It seems that the Applicant also complained to the Ministry of Justice

but he states that the Ministry did not give him any final reply,

thereby, in his opinion, preventing him from exhausting the domestic

remedies.

The Applicant states that as a result of his detention in a "silence

division" he contracted a stomach ulcer and he also points out that

during that detention he was exposed to all sorts of affronts by the

prison officers.

He alleges violations of Articles 2 and 3 of the Convention.

2. Interference with right of correspondence

(a) On .. November, 1958, the Applicant received permission to

correspond regularly (Regelbriefverkehr) with a certain Miss A. W whom

he intended to marry and who was the mother of his two illegitimate

children. He did not wish to correspond with his wife as they were no

longer living together and he apparently intended to obtain a divorce

from her. On one occasion, however, his wife wrote to him enclosing a

short letter from his legitimate daughter. He then asked for special

permission to send a letter in reply to his daughter under the address

of his wife. As a result, the prison authorities withdrew, on ..

December, 1959, the permission for him to correspond with Miss W. On

.. February, 1960, the prison authorities seized a letter written on

.. January, 1960 by Miss W to the Applicant. On .. April, 1963, after

more than three years' interruption of his correspondence with Miss W,

the Applicant was again allowed to correspond with her but only on

condition that he did not write to his wife.

The Applicant states that as a result of the long interruption of his

correspondence with Miss W difficulties and misunderstandings arose

between them, and Miss W even married another man from whom, however,

she subsequently became divorced.

After lodging a hierarchical appeal (Dienstaufsichtsbeschwerde) which

was rejected on .. May, 1963 by the Ministry of Justice in

Baden-Württemberg, the Applicant instituted proceedings regarding the

interference with his correspondence with the Administrative Court

(Verwaltungsgericht) of Karlsruhe. The Administrative Court did not

consider itself to be competent to deal with the case but transferred

it, on .. January, 1964, to the Court of Appeal of Karlsruhe. On ..

July, 1964, the Court of Appeal, which considered the Applicant's

petition as an application lodged under Article 23 of the Introductory

Act to the Judicature Act, declared it inadmissible, partly because

some of the decisions complained of had been given before Article 23

of the said Act had entered into force, and partly because the

Applicant had not exhausted his remedies according to the Execution

Ordinance (Strafvollzugsordnung).

The Applicant alleges a violation of Article 8 of the Convention. He

states that, in fact, the interference with his correspondence was an

act of revenge for his refusal to participate in the divine services

in prison and to accept Christmas gifts which were being distributed

by the Prison Chaplain, and he therefore also alleges a violation of

Article 8 of the Convention.

(b) The Applicant also complains that many letters which he had written

in prison had not been forwarded because they were considered to be

defamatory or offensive. He mentions, in particular, letters to his

lawyer, Professor P, in East Berlin, and to his fiancée who is living

in the Soviet Occupied Zone of Germany. He has submitted extracts of

two such letters to his fiancée which mainly deal with the conditions

in German prisons in general and with certain particular cases of

ill-treatment in a Hamburg prison.

The Applicant maintains that some of the letters seized were formal

complaints and that, therefore, he was prevented from exhausting

domestic remedies in regard to some allegations. He provides no further

details on this point.

He alleges violations of Articles 8 and 10 of the Convention.

3. Miscellaneous complaints

(a) Certain complaints relate to the medical treatment which the

Applicant has received during his detention.

He states that as he suffered from a stomach ulcer he was sent to

hospital where the competent doctor ordered that he should follow a

special diet ("Milchbreikost"). After he had been discharged from the

hospital, the Prison Doctor, paying no attention to his state of

health, permitted his return to the "silence division" although he was

in fact physically unfit for such severe detention. In the "silence

division", the Prison Doctor only gave him special diet once a day,

although the other doctor who had treated him at the hospital had

ordered that such diet should be given twice a day.

The Applicant also complains that the Prison Doctor gave him a certain

injection without first consulting a surgeon.

In regard to the action of the Prison Doctor, the Applicant complained

to the Medical Association (Ärztekammer) and he also lodged a

hierarchical appeal (Dienstaufsichtsbeschwerde) with the Ministry of

Justice, but without success. He also brought a criminal charge against

the Doctor, but the Public Prosecutor refused to prosecute.

He alleges a violation of Article 2 of the Convention.

(b) On .. May, 1965, the Regional Court (Landgericht) of Karlsruhe held

a hearing in regard to the divorce proceedings pending between the

Applicant and his wife.

The Applicant was forced to appear at this hearing and before appearing

at the court he was ill-treated and brutally handcuffed by police

officers, so that one hand was injured, and he was trodden upon. In

regard to his hand injury, the Doctor did not give him any treatment.

At the hearing, his lawyer protested against this violent treatment to

which the Applicant had been subjected but the President merely asked

his lawyer to keep calm.

The Applicant complained without success of the brutal action of the

police officers and the failure of the Doctor to give him adequate

treatment. The Ministry of Justice rejected his complaint on .. May,

1965. His complaint to the Local Medical Association

(Bezirksärztekammer) of North-Baden was transmitted to the Ministry of

Justice which, on .. June, 1965, rejected the complaint by referring

to its previous decision of .. May, 1965.

The Applicant also submitted an application for a judicial decision

(Antrag auf gerichtliche Entscheidung) to the Court of Appeal in

Stuttgart which rejected this application on .. August, 1965.

The Applicant finally brought criminal charges in respect of the same

incident, but the Public Prosecutor at the Regional Court decided on

.. August, 1965 not to take any action, and this decision was upheld

on .. September, 1965 by the Senior Public Prosecutor at the Court of

Appeal. He asked for legal aid in order to be able to bring the case

before the Court of Appeal, but on .. November, 1965, legal aid was

refused.

(c) In respect of the alleged ill-treatment of an Algerian prisoner,

the Applicant complained to the Federal Parliament (Bundestag). This

complaint was transmitted to the Parliament (Landtag) of

Baden-Württemberg which dismissed it on .. January, 1964.

He also submitted a criminal charge against the prison officer

allegedly responsible for this ill-treatment, but on .. September,

1964, the Public Prosecutor refused to institute criminal proceedings.

(d) The Applicant also brought a criminal charge against a prison

officer who had allegedly made certain antisemit statements. Although

his allegations were supported by another prisoner, the Public

Prosecutor did not find that there were sufficient reasons to institute

criminal proceedings, and this decision given on .. January, 1964 was

upheld on .. March, 1964 by the Senior Public Prosecutor.

(e) From the file, it appears that the Applicant also lodged a number

of other complaints in regard to various prison officers who had

allegedly insulted him or had otherwise behaved improperly. He also

complained that a letter sent to him by his lawyer had been opened by

the prison authorities and he complained to the Bar Association about

the way his lawyer had assisted him. Other complaints concerned

disciplinary punishments imposed on him and on one occasion he alleged

that he had not enough writing paper at his disposal. None of these

complaints were apparently successful, and it is not clear to what

extent he actually intends to raise these complaints before the

Commission.

Proceedings before the Commission

Whereas the proceedings before the Commission may be summarised as

follows:

By letters of 11th and 27th September and 14th October, 1965, the

Applicant informed the Commission that he wished to withdraw his

Application. Before the Commission had taken any decision in regard to

this withdrawal, the Applicant indicated, however, by letter of 4th

December, 1965, that he again wished the Commission to examine his

case.

On 6th October, 1966, the Commission decided:

(a) to give notice to the Federal Government, pursuant to Rule 45,

paragraph (3) (b), of the Commission's Rules of Procedure, of the

Application in so far as it concerned the Applicant's complaint as to

his detention in a "silence division" and to invite the Government to

submit its observations on the admissibility of that part of the

Application;

(b) to adjourn its examination of the remaining parts of the

Application.

The Government submitted its observations on 16th December, 1966 and

the Applicant's reply is dated 28th December, 1966 and was received by

the Commission on 4th January, 1967.

In view of the contents of the Applicant's reply, the Government

submitted, on 20th January, 1967, a further pleading which was

communicated to the Applicant for his information.

Submissions of the Parties

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

The Federal Government referred to a statement which it had received

from the Ministry of Justice of Baden-Württemberg in regard to the

Applicant's complaint. The Ministry had stated that this complaint

should be so interpreted as to concern primarily the fact that the

Applicant had not been allowed to join other prisoners in taking walks

in the prison courtyard as provided for in the Service and Prison

Files. In fact, the Applicant had been prohibited from mixing with his

fellow-prisoners in these walks in the prison courtyard and he had to

do his open-air exercise in the so-called "Normalhof" ("ordinary

yard"). The Government quoted the following statement by the Ministry

of Justice of Baden-Württemberg:

"While the prisoners admitted to the more informal walks in the prison

courtyard are allowed to talk to each other, those spending their

open-air exercise time in the so-called "Normalhof" are not allowed any

conversation with their fellow-prisoners during that time."

The Government further submitted that the Applicant's complaint was

inadmissible, since the domestic remedies had not been exhausted. In

reply to an appeal lodged by the Applicant in August, 1964, the Federal

Constitutional Court had informed him, on .. September, 1964, that,

before lodging a constitutional appeal, he should exhaust all other

remedies and that, in particular, he should lodge an application for

a judicial decision according to Article 23 of the Introductory Act to

the Judicature Act. Nevertheless, the Applicant had again written to

the Federal Constitutional Court which, on .. October, 1964, had

formally rejected his constitutional appeal as being inadmissible. The

Applicant had not even after this decision lodged an application for

a judicial decision according to Article 23 of the Introductory Act to

the Judicature Act, and consequently he had not exhausted the legal

remedies at his disposal.

The Applicant replied that his complaint concerned the illegal silence

division in the Bruchsal prison. While the Penal Code and the Service

and Prison Rules contained provisions regarding the use of solitary

confinement, there were no corresponding provisions regarding the

system of silence division and this system was therefore illegal.

In regard to the legal remedies, the Applicant confirmed that, in reply

to his complaint of August, 1964, the Federal Constitutional Court had

informed him that he should first lodge an application with the

competent Court of Appeal. Nevertheless, he had immediately submitted

a new complaint to the Federal Constitutional Court and had been

informed that this complaint had been registered as a constitutional

appeal. The Applicant maintained, however, that the decision of ..

October, 1964 referred to by the Government had not concerned the

present complaint but that the reference number of the case had been

confused with the number of another appeal.

The Government contested that the numbers of two appeals had been

confused and undertook to submit the relevant file of the Federal

Constitutional Court if the Commission should require further

information on this point.

THE LAW

Whereas, in regard to the Applicant's complaint as to his detention in

a "silence division" (paragraph 1 of the statement of facts), it is to

be observed 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 Government has submitted that the Applicant had not lodged

an application for a judicial decision (Antrag auf gerichtliche

Entscheidung) according to Article 23 of the Introductory Act to the

Judicature Act (Einführungsgesetz zum Gerichtsverfassungsgesetz);

whereas the Applicant has not contested this statement by the

Government; whereas, therefore, it must be assumed that the Applicant

did not use this particular remedy;

Whereas it also appears that the Federal Constitutional Court had

informed the Applicant, by letter of .. September, 1964, that he should

make use of this remedy before lodging a constitutional appeal;

Whereas, consequently, the Applicant has not exhausted the domestic

remedies within the meaning of Article 26 (Art. 26) of the Convention,

in particular, as the failure to lodge an application for a judicial

decision also excluded him from having his allegations examined by the

Federal Constitutional Court;

Whereas, in these circumstances, it is superfluous to examine the

contents of the Federal Constitutional Court's decision of .. October,

1964 in regard to which the Parties have made contradictory statements;

Whereas, in regard to the Applicant's complaint as to interference with

his correspondence with a certain A.W (paragraph 2 (a) of the statement

of facts), it appears that the Applicant lodged a complaint which was

treated as an application for a judicial decision according to Article

23 of the Introductory Act to the Judicature Act; whereas the competent

Court of Appeal decided that this application was inadmissible since

some of the decisions complained of had been given before 1st April,

1960, the day on which Article 23 of the said Act had entered into

force and, further, in regard to subsequent decisions, the Applicant

had not exhausted the remedies which were available to him under the

Execution Ordinance (Strafvollzugsordnung);

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, and within a period of six months from the date of the

final domestic decision;

Whereas, as regards the decisions given before 1st April, 1960 in

respect of the Applicant's correspondence with A.W, the Applicant

failed to observe the six months' time-limit, since he did not submit

his case to the Commission until 29th July, 1964, that is more than six

months after the dates of the decisions complained of;

Whereas, as regards the decisions given after 1st April, 1960 in

respect of that correspondence, the Applicant failed to exhaust the

domestic remedies at his disposal; whereas, in particular, he did not

take action according to the Execution Ordinance; whereas his failure

to take such action also prevented him from having his complaint

examined by the Court of Appeal;

Whereas it follows that in regard to the Applicant's complaint as to

the interference with his correspondence with A.W, he did not comply

with the conditions laid down in Article 26 (Art. 26) of the

Convention;

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

an Algerian prisoner (paragraph 3 (c) of the statement of facts), it

is to be observed that, according to Article 25 (Art. 25) of the

Convention, the Commission may only receive petitions from a person,

organisation or group of individuals "claiming to be the victim of a

violation by one of the High Contracting Parties of the rights set

forth in this Convention";

Whereas, in regard to the present complaint, the Applicant does not

allege that he is, directly or indirectly, the victim of the

ill-treatment concerned;

Whereas it follows that this part of the Application is incompatible

with Article 25 (Art. 25) of the Convention and is to be rejected

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

Whereas, in so far as the Applicant's complaints are directed against

his lawyer (paragraph 3 (e) of the statement of facts), it appears from

Article 25 (Art. 25) of the Convention that the Commission can admit

an application from an individual only if that individual claims to be

the victim of a violation of the Convention "by one of the High

Contracting Parties"; whereas, on the other hand, the Commission has

no competence ratione personae to admit applications directed against

private individuals;

Whereas it follows that this part of the Application which is directed

against the Applicant's lawyer is incompatible with the Convention

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

Convention (see Application No. 1599/62, Yearbook of the European

Convention on Human Rights, Volume 6, page 356);

Whereas, in regard to the remainder of the Application, including the

Applicant's complaints as to interference with his correspondence with

persons other than A.W, inadequate medical treatment, ill-treatment of

the Applicant and antisemit statements by a prison officer (paragraphs

2 (b), 3 (a), (b), (d) and (e) of the statement of facts), an

examination of the case as it has been submitted does not disclose any

appearance of a violation of the rights and freedoms set forth in the

Convention and, particularly in Articles 3 and 8 (Art. 3, 8);

Whereas it follows that these parts of the Application are 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.