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:

The Applicant is a German citizen, born in 1930 and at present detained

in the Tegel prison in Berlin. He is represented before the Commission

by Mr. Hasso Fügart, a lawyer practising in Berlin.

A previous Application (No. 2004/63) lodged by the same Applicant was

declared inadmissible by decisions of 1st June, 1965 and 24th May, 1966

(2).

The Applicant now alleges that he was ill-treated by prison officers

in the Tegel prison on 4th September, 1965. He states that on that day,

when on his way back from the prison hospital, he had a dispute with

a prison officer named H who finally attacked him. He received blows

on his ribs and was choked from behind. Another prison officer, K,

twisted his left arm and he was dragged to a place where a third

officer named M, assisted the other two in assaulting him. He was then

taken to an isolation cell where later he tried unsuccessfully to

explain the situation to a prison officer, O. After O had left the

cell, H entered and threatened him ("Du hast Glück, dass wir nicht

allein sind, sonst würde ich Dich Schwein schon klein kriegen").

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(1) A partial decision by the Commission on 16th December, 1965,

declaring part of the Application inadmissible has not been published.

(2) See Collection of Decisions, Volume 20, page 40.

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After some time, Kornmann was ordered to leave the cell and was taken

to another cell ("Spülzelle") where he was told to undress. He asked

to be allowed to speak to one of the superiors in the prison but was

not allowed to do so. H. wished to take off Kornmann's clothes by force

after Kornmann had asked for the reason for the treatment to which he

was being subjected. Someone then proposed to take Kornmann to the

cellar of House I ("da werden wir mit ihm schon fertig"). His arms were

again twisted and he was pushed and taken to this cellar where he was

forced to undress and H again threatened him. Kornmann again stated

that he wished to see one of the superiors but he was knocked down,

kicked, pushed about and pulled by his hair and one of the officers

asked for a truncheon; his chest and back were trodden on by prison

officers and with the use of much brutality a metal band was tied round

his body.

He was then handcuffed so tightly that his hands were swollen as the

circulation of his blood was hindered. After about one hour another

prison officer relieved him of his fetters but he was not allowed to

see the Inspector or the prison doctor and, in his submission, this was

apparently refused because he had still marks of ill-treatment.

Kornmann stated that, when writing his letter (on 4th September, 1965),

he still had pains and difficulty in breathing as results of this

ill-treatment in the cellar and of the fact that the prison officers

had trodden on his stomach and back.

Proceedings before the Commission

Whereas the proceedings before the Commission may be summarised as

follows:

The present Application was lodged on 4th September, 1965, and was

registered on 10th December, 1965. The Application concerned not only

the alleged incident of ill-treatment but also a number of other

allegations.

On 16th December, 1965, the Commission decided to declare the

Application inadmissible except in regard to the alleged ill-treatment.

The Commission further decided that, in respect of this allegation, the

Parties should be asked to make oral explanations of the admissibility

at the hearing which was to be held in regard to Application No.

2004/63, also lodged by Kornmann.

The oral hearing, for which the Applicant was granted legal aid by the

Commission, was held on 11th and 12th February, 1966. Following the

hearing, the Commission decided to adjourn its decision on

admissibility and, in the meanwhile, to ask the Government to provide

further information on certain points and to submit certain documents.

On 18th April, 1966, the Government submitted its further written

observations and the Applicant's lawyer replied on 6th May, 1966. The

Government also submitted additional pleadings on 9th and 20th May,

1966.On 24th May, 1966, the Commission decided

(a) not to take notice of the Government's pleading of 20th May, 1966,

as it had arrived after the pleadings had been closed;

(b) to adjourn its decision on the admissibility of the Application

pending the outcome of certain proceedings in Berlin.

On 17th June, 1966, the President of the Commission decided that a

passage of the Government's pleading of 20th May, 1966 should be

communicated to the Applicant's lawyer and a reply was submitted by him

on 6th July, 1966.

After being informed by the Applicant's lawyer about the progress of

the proceedings in Berlin, the Commission decided, on 4th October,

1966, to invite the Government to submit further observations on

certain aspects of the case.

The Government submitted a pleading on 8th November, 1966 and the

Applicant's lawyer did not submit any reply within the time-limit fixed

by the Commission.

Applications for adjournment on different grounds were submitted by

both Parties and were rejected by the Commission on 4th October and

13th December, 1966.

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 submitted on 4th February, 1966 a copy of a document

stating as follows:

"Berlin 27, 8th October, 1965, Seidelstrasse 39

Declaration

I consider my petition of 4th September, 1965 to the Council of Europe,

Strasbourg, as settled and hereby withdraw it.

Heinz Kornmann."

The Government further explained that this declaration had, by mistake,

been filed with the Berlin authorities instead of being at once

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 (this was stated at an early stage of the

proceedings, when the Applicant had not yet availed himself of the

"prosecution enforcement procedure" - Anklageerzwingungsverfahren -

provided for in Article 172 of the Code of Criminal Procedure).

According to the Government, the declaration of withdrawal might also

indicate that the Applicant himself had doubts as to whether the

allegations made in his Application were well-founded and,

consequently, the declaration of withdrawal might also have some

relevance in the examination of the question as to whether the

Application was manifestly ill-founded.

The Applicant's lawyer stated that it was not clear whether the

declaration referred to by the Government concerned the incident of 4th

September, 1965. He submitted that the Applicant could hardly have

complained of this ill-treatment by a petition dated 4th September,

1965, being the same day on which he had been severely manhandled,

transferred to a detention cell and punished by seven days' strict

detention. If, however, the declaration of withdrawal was shown to

concern the complaint as to his ill-treatment, the Applicant's lawyer

submitted that it had not been withdrawn of the Applicant's free will.

In any event, the Applicant's own conduct showed that he did not intend

to withdraw his complaint. 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)

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 criminal 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 in Article 172

of the Code of Criminal Procedure (Strafprozessordnung). This procedure

implied that an application for a judicial decision could be lodged

with the competent Court of Appeal which, in the case of Berlin, was

the Kammergericht.

The Government first submitted that the present Application was

inadmissible as the Applicant had not exhausted these remedies. It

pointed out that the Applicant had lodged a criminal charge on 11th

September, 1965 but that he had withdrawn this charge on 5th October,

1965 and that, in view of his withdrawal, the Public Prosecutor at the

Landgericht had decided to discontinue the proceedings.

However, while the Application was pending before the Commission, the

Public Prosecutor decided on 4th April, 1966, to re-open the

investigation ex officio.  Following this new investigation, the Public

Prosecutor again decided, on 15th April, 1966, to discontinue the

proceedings.

The Applicant's appeal from this decision was rejected on 18th July,

1966 by the Senior Public Prosecutor at the Kammergericht. The

Applicant then lodged an application for a judicial decision by the

Kammergericht in accordance with Article 172 of the Code of Criminal

Procedure. This application was rejected on 29th August, 1966.

The Government has not submitted that the Applicant was also obliged

to exhaust further remedies in order to comply with Article 26 of the

Convention. It is true that the Government referred to two further

remedies, namely

(a) an application for a judicial decision by the Kammergericht in

accordance with Article 23 of the Introductory Act to the Judicature

Act (Einführungsgesetz zum Gerichtsverfassungsgesetz) which provides

for an appeal in regard to decisions and measures taken by the prison

authorities;

(b) civil proceedings against the Land Berlin in respect of breach of

official duty (Amtspflichtverletzung) by officers of justice, the legal

basis being Article 34 of the Basic Law (Grundgesetz) and certain

provisions of the Civil Code (Bürgerliches Gesetzbuch), in particular,

Article 839.

The Government emphasised, however, that the principal remedy in the

present case was a criminal charge.

The Applicant's lawyer maintained that the Applicant had exhausted the

domestic remedies within the meaning of Article 26 of the Convention.

He submitted that, as the Applicant had pursued the proceedings

regarding the criminal charge up to the Kammergericht, he could not be

required also to lodge an application according to Article 23 of the

Introductory Act to the Judicature Act. The lawyer further submitted

that civil proceedings could not be considered 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.

In particular, the courts would never grant legal aid unless this

condition was satisfied.

3. As to the question whether the Application is manifestly ill-founded

(Article 27, paragraph (2), of the Convention)

The Government did not make any substantial comments on the incident

of 4th September, 1965 itself. It referred, however, to certain

statements made by the prison officers concerned and submitted certain

documents, in particular, the file of the Public Prosecutor regarding

his investigation of the Applicant's allegations. The Government also

pointed out, on the basis of the statements of the prison officers,

that the background of the incident was different from what the

Applicant had stated. On this point, the following statement made by

the Government's representative at the oral hearing may be quoted:

"The important point appears to me to be Principal Officer H's

statement that the Applicant was not on his way back from the hospital,

as he said, when this altercation came about. H states here that he had

locked out the prisoners of the section in which Kornmann was for their

recreation period, in other words he had let them out of the section,

which was closed off, and when he looked down into that wing of the

building he saw that Kornmann, whom he had also shut out for the

recreation period, was in front of the infirmary. The report continues:

"If Kornmann says that he was shut out by me to go to the hospital and

not for the recreation period, that is not correct." The Principal

Officer's duty was to watch prisoners in their recreation period

carefully, in particular, to ensure that no prisoner separated himself

from the group, for if that happens there is always the danger of

escape or attempted escape. He asked Kornmann what he was doing in

front of the hospital and told him he had to report to him (H) before

he went there. We read further that H did not bawl at the Applicant at

all, as Kornmann has stated in his petition; it was rather the other

way round. Kornmann is said to have immediately become abusive in reply

to the officer's rebuke and to have made remarks like, "I won't be

ordered about by you. Who do you think you are? I won't put up with

your Nazi concentration camp methods."  H then told the Applicant to

come with him. Kornmann did not obey this order. H therefore had to

force him to come with him, and Kornmann resisted. That is how the

struggle came about. This is confirmed in the main by the other

witnesses who, it is true, did not see the beginning."

The Government also submitted that the Applicant was not a person

worthy of credit. Even the manner in which he had conducted his case

before the Commission disclosed a tendency to be querulous and various

statements made by him in his letters to the Commission were mere

invention. One example was that he had frequently referred to his

experiences in a concentration camp, although, in fact, it was certain

that he had never been in such a camp. The Government also referred

agreed in stressing his lack of honesty at the time when he was at

school. It was also submitted that the Applicant had himself asked to

be transferred to a mental home by reason of his mental condition;

further, that the Applicant's wife had declared that she had found a

certificate by a mental institution from which it appeared that in 1954

the Applicant, criminally responsible according to Article 51,

paragraph (1), of the Criminal Code. The Government also indicated that

the Applicant would be examined by a psychiatrist in connection with

criminal proceedings which had been instituted against him in respect

of defamation and false accusations against prison officers.

The Applicant's lawyer adhered to the Applicant's own version of the

incident on 4th September, 1965 and contested that the Applicant's

statements could be disregarded on the ground that he was not worthy

of credit. He pointed out that lately there had been numerous cases of

ill-treatment in German prisons and that therefore the Applicant's

allegations were in no way absurd.

THE LAW

Whereas the Government has submitted a declaration of 8th October, 1965

in which the Applicant states that he withdraws his petition to the

Council of Europe dated 4th September, 1965; whereas the Applicant's

complaint regarding the alleged ill-treatment on 4th September, 1965

was first submitted to the Commission by a letter dated 4th September,

1965;

Whereas, therefore, the Commission is satisfied that the declaration

of withdrawal invoked by the Government concerned the incident of 4th

September, 1965;

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,

the Commission, in its decision to strike out the Application

concerned, has consistently included the following proviso, namely,

that no reasons of a general character affecting the observance of the

Convention necessitated a further examination of the complaint (see

Applications Nos. 2169/64, 2204/64 and 2326/64, Collection of

Decisions, Volume 14, page 82); whereas, in certain cases, the

Commission has found that the Application concerned raised problems

under the Convention which might extend beyond the interests of the

particular Applicant and has decided, on that ground, not to strike out

the Application in spite of the declaration of withdrawal (see

Applications Nos. 2004/63, Collection of Decisions, Volume 20, pages

50 - 51, and 2294/64, Collection of Decisions, Volume 20, pages 99 -

100);

Whereas the Commission finds that the present Application raises such

problems under the Convention and, consequently, considers that there

are sufficient reasons to examine the admissibility of the Application

irrespective of the possible existence of a valid 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

a criminal charge (Strafanzeige);

Whereas the Commission observes that the Applicant complains of

ill-treatment by prison officers and that the alleged acts constitute

criminal offenses under 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 criminal charge 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 implementation of this remedy, it appears that,

on 11th September, 1965, the Applicant lodged a criminal charge which,

however, he subsequently withdrew; whereas the Public Prosecutor first

decided, in view of this withdrawal, to discontinue the proceedings but

subsequently re-opened the investigation ex officio; whereas, however,

the Public Prosecutor decided for the second time, on 15th April, 1966,

to discontinue the proceedings; whereas the Applicant appealed from

this decision but his appeal was rejected on 18th July, 1966 by the

Senior Public Prosecutor; whereas the Applicant also lodged an

application with the Kammergericht according to Article 172 of the Code

of Criminal Procedure and whereas this application was rejected on 29th

August, 1966;

Whereas it follows that the Applicant exhausted these particular

remedies as required by Article 26 (Art. 26) of the Convention;

Whereas the Commission has also examined the question whether the

Applicant was obliged to exhaust any further remedy in order to comply

with Article 26 (Art. 26); whereas the proceedings which might enter

into consideration are, on the one hand, those provided for in Article

23 of the Introductory Act to the Judicature Act (Einführungsgesetz zum

Gerichtsverfassungsgesetz) and, on the other, civil proceedings against

the Land Berlin.

Whereas, in this regard, the Commission observes that the present case

concerns primarily a question of evidence and that the reason why the

Applicant was unsuccessful in lodging a criminal charge was that the

authorities did not find that there was sufficient evidence to support

his allegations; whereas it is clear that the Applicant, if he had

lodged an application according to Article 23 of the Introductory Act

to the Judicature Act or had instituted civil proceedings, would have

been faced with the same problem of proving that he had in fact been

ill-treated; whereas, consequently, his failure to prove his

allegations in connection with his criminal charge creates a

presumption to the effect that neither an application lodged according

to Article 23 of the said Introductory Act nor civil proceedings would

have had any chance of giving the Applicant satisfaction;

Whereas, therefore, these two remedies cannot be considered as

sufficient or effective in the circumstances of the present case and

the Applicant was not obliged to exhaust them in order to comply with

Article 26 (Art. 26) of the Convention;

Whereas the Commission concludes that the conditions laid down in

Article 26 (Art. 26) have been satisfied in the present case;

Whereas the Applicant's allegations give rise to an important question

of a possible violation of Article 3 (Art. 3) of the Convention;

Whereas, however, the full circumstances relating to the incident of

4th September, 1965 are to some extent in dispute and their

determination requires a complete investigation of the case; whereas

it follows that this complaint cannot be regarded as manifestly

ill-founded within the meaning of Article 27, paragraph (2)

(Art. 27-2), of the Convention and cannot be declared inadmissible;

For these reasons and without in any way prejudging the merits of the

case, the Commission,

Having regard to its partial decision of 16th December, 1965, declares

ADMISSIBLE and accepts the remainder of the Application.