Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27425/95

by G. D.

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 16 April 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 13 March 1995 by

G. D. against Germany and registered on 29 May 1995 under file

No. 27425/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

25 July 1997 and the observations in reply submitted by the

applicant on 23 September 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a German citizen born in 1927, is a pensioner

currently detained at Berlin Tegel prison in Germany. Before the

Commission he is represented by Mr H. Reiser, a lawyer practising in

Regensburg.

The facts of the case, as submitted by the parties, may be

summarised as follows.

A. Particular circumstances of the case

In 1989 the Munich Regional Court (Landgericht) convicted the

applicant of attempted murder, and sentenced him to eleven years

imprisonment.

The application concerns two sets of facts both relating to the

applicant's then detention at Straubing prison when serving the prison

sentence.

1. In 1991, a fellow prisoner K.M., while still detained in Berlin,

was found to have a serious heart condition. He was transferred to

Straubing prison where he was apparently subjected to a normal prison

regime. In December 1991 K.M. allegedly had a heart attack; he died

in January 1992.

The applicant instituted proceedings, inter alia, against the

prison director, though without success, as the autopsy disclosed that

K.M. had died of lung cancer. His constitutional complaint

(Verfassungsbeschwerde) was dismissed by the Federal Constitutional

Court on 18 November 1994.

2. On 24 February 1994 the director of Straubing prison issued an

order that every fourth prisoner who had received a visitor that day

was to submit, undressed, to a body search.

On the same day, the applicant was visited by his wife in prison.

After the visit, two members of staff took the applicant to a separate

room where he was requested to take off all his clothes. The applicant

took off some clothes, but not all, whereupon he was warned about his

obligation to obey the order.

As the applicant refused to undress, his underpants were removed

by a member of prison staff in the presence of two further members who

had been called for security reasons. The applicant stayed quiet, and

no physical force was used. The applicant's clothes were inspected,

and the staff looked to see whether the applicant was carrying

prohibited items on his body, though he was not touched while this

happened.

On 28 February 1994 the applicant filed a complaint against the

Straubing prison director and others with the Regensburg Public

Prosecutor's Office (Staatsanwaltschaft), complaining, inter alia, that

a body examination at his age amounted to degrading treatment contrary

to Article 3 of the Convention, and requesting the punishment of the

officers concerned.

On 2 May 1994 the Public Prosecutor's Office decided not to

institute criminal proceedings. The decision referred in particular

to an instruction (Anordnung) of the Straubing institution director

according to which every fourth prisoner who had received a visitor had

to submit, undressed, to a body investigation (mit einer Entkleidung

verbundene körperliche Durchsuchung). The decision considered that,

in view of the German courts' case-law, this measure complied with

S. 84 para. 2, first sentence, of the Execution of Sentences Act

(Strafvollzugsgesetz; see below, Relevant domestic law.)

The applicant's complaint against this decision was dismissed by

the Public Prosecutor General's Office on 22 June 1994.

The applicant filed a request for judicial review of his

complaint against the prison director (gerichtliche Entscheidung im

Klageerzwingungsverfahren). The applicant pointed out that he had

never smuggled anything into the prison and had never had anything to

do with drugs. He contended that the prison director had committed the

offences of bodily injury and of insult.

On 19 August 1994 the Nuremberg Court of Appeal

(Oberlandesgericht) declared the request inadmissible. The Court noted

that it did not transpire from the applicant's submissions how the

prison director had committed bodily injury or insult. Thus, the

latter had ordered that, after having received a visitor, every fourth

prisoner had to submit to a body investigation, requiring undressing.

However, such an examination was not necessarily coupled with force.

The latter only became necessary if the prisoner without reason refused

to undress and to submit to an examination. This measure was

nevertheless covered by S. 84 of the Execution of Sentences Act.

The Court moreover found that it did not amount to a criminal

offence if the prison director ordered his staff to employ force if a

person refused to submit to a body examination.

In his constitutional complaint (Verfassungsbeschwerde) the

applicant complained, inter alia, of an examination of his bodily

orifices and of psychological and bodily abuse (körperliche und

seelische Misshandlung). The complaint was dismissed by the Federal

Constitutional Court (Bundesverfassungsgericht) on 18 November 1994.

B. Relevant domestic law

S. 84 para. 2 of the Execution of Sentences Act (Strafvollzugs-

gesetz) states:

"Only in the case of danger or upon an order of the institution

director in a concrete case is it admissible to undertake a body

examination which requires undressing. The examination must take

place in a closed room. Other prisoners shall not be present."

S. 94 para. 1 of the Prison Act envisages forceful coercion by

prison staff where they are properly carrying out their duty and the

object aimed at thereby cannot be achieved in any other way.

According to S. 109 of the Execution of Sentences Act, a request

for judicial review may be filed in respect of a measure concerning the

execution of a sentence. The complaint must allege that the measure

at issue breaches the rights of the person concerned (in seinen Rechten

verletzt).

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that

the death of fellow prisoner K.M. implies that he himself will be

submitted to wrong, careless or inadequate medical treatment at

Straubing prison.

2. Also under Article 3 of the Convention the applicant complains

of inhuman and degrading treatment in that, at his age, he was forced

to undress by the prison officers and submit to a body examination,

including his bodily orifices, without any concrete reason.

The applicant submits that he has never breached the law in

prison and has never had anything to do with drugs. He also has no

contacts with other prisoners. Thus, there was no danger of collusion

or of absconding. Not even security in prison justified the body

examination of every fourth prisoner. In his case there was never any

concrete danger within the meaning of S. 84 para. 2 of the Execution

of Sentences Act; and there was also no order in the concrete case, as

required by that provision.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 13 March 1995 and registered

on 29 May 1995.

On 10 April 1997 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on 25 July

1997. The applicant replied on 23 September 1997.

THE LAW

1. The applicant complains under Article 3 (Art. 3) of the

Convention about insufficient medical treatment at Straubing prison,

and about degrading treatment in that he was forced to submit to a body

examination.

Article 3 (Art. 3) of the Convention states:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

2. The Commission has first dealt with the applicant's complaint

that the death of a fellow prisoner is an indication of inadequate

medical care at Straubing prison. However, the applicant has not

substantiated that he himself requires particular care, or that he

suffers from any particular illness requiring medical treatment.

This part of the application is therefore manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3. The Commission has next dealt with the applicant's complaint

under Article 3 (Art. 3) of the Convention that he was forced to submit

to a body examination.

a) In respect of this complaint, the respondent Government submit

that the applicant has not complied with the requirement under

Article 26 (Art. 26) of the Convention as to the exhaustion of domestic

remedies. Thus, he could have filed an action for judicial review of

his complaint according to S. 109 of the Execution of Sentences Act.

The action which the applicant filed was unsuited even for indirectly

obtaining a court review of the search ordered.

The applicant submits that the remedy which he employed at least

indirectly achieved the aim of having the lawfulness of the contested

measure examined.

The Commission notes that the applicant filed a request with the

Nuremberg Court of Appeal for judicial review of his criminal complaint

against the prison director. In last resort, he obtained a decision

of the Federal Constitutional Court.

The Commission need nevertheless not examine whether in this

respect the applicant has complied with the requirement as to the

exhaustion of domestic remedies within the meaning of Article 26

(Art. 26) of the Convention, since this part of the application is in

any event inadmissible for the following reasons.

b) The Government contend that the measure complained of was based

on S. 84 para. 2 of the German Prison Act in that the applicant's

examination was ordered by the prison director in an individual case.

Moreover, direct coercion is authorised by S. 94 of the Prison Act.

The Government refer to the practice at Straubing prison

according to which a prisoner's body is examined without any physical

contact. Thus, the prisoner is asked to open his mouth, to bend over

and to move his fingers and toes. These measures assist in

establishing whether the person is carrying prohibited items on his

body. Exceptionally, prisoners with long hair are physically searched.

In the present case, the applicant was asked voluntarily to take off

his clothes, though he refused. Since he remained passive, the removal

of his underpants was carried out very carefully without use of

physical force. The items of clothing were examined and the staff

looked to see whether he was carrying prohibited items on his body.

The applicant was not touched while this happened.

The Government point out that in the present case there were

additional special reasons for searching the applicant. Thus, upon the

applicant's arrest in 1988 a special police task force had to be

employed, as he had retreated to the attic of his house from where he

shot at the police with a machine gun. Subsequently, a total of eight

weapons and extensive supplies of ammunition were found. Moreover, he

had himself told the police that whoever went after his liberty would

be "stamped out" ruthlessly. While in prison the applicant has

repeatedly been heard as uttering threats and making aggressive

remarks. Reference is also made to a medical expert opinion quoted in

the judgment of 1989 according to which the applicant was aggressive

and had an extrapunitive attitude. Thus, he posed particular dangers;

his hostile attitude continued in prison, and his search had to rule

out the possibility of his carrying prohibited items.

The applicant submits that his complaint is well-founded.

Ordering a person to strip naked in order to conduct an examination

constitutes an interference with Article 3 (Art. 3) of the Convention

in view of the effect on that person's sense of shame and the

humiliating feeling of being naked in the presence of fully clothed

persons. In the present case, the measure also contradicted the

statutory provisions as there was no indication of any imminent danger.

Moreover, the prison director's instruction to make every fourth

convicted person undress immediately after a visit and to subject him

to an examination constitutes a general order permitted only when

persons are first brought to prison. A decision taken in an individual

case, such as his, must be justified by a concrete suspicion that the

prison rules are in danger of being breached. The court decisions were

themselves unlawful.

The applicant also contends that the body search cannot be

justified by referring to assessments of prison officers according to

which he is portrayed as stubborn, unreasonable and extremely

dangerous. The only decisive factor can be whether there was a

concrete suspicion that the applicant's wife had brought prohibited

objects with her. There was also a violation of the ban on the use of

excessive force, which in itself made the instruction unlawful.

The Commission recalls the Convention organs' case-law according

to which ill-treatment must attain a minimum level of severity if it

is to fall within the scope of Article 3 (Art. 3) of the Convention.

The assessment of this minimum is, in the nature of things, relative.

It depends on all the circumstances of the case, such as the duration

of the treatment, its physical or mental effects and, in some cases,

the sex, age and state of health of the victim (see Eur. Court HR,

Ireland v. United Kingdom judgment of 18 January 1978, Series A no. 25,

p. 65, para. 162).

The Commission has examined the circumstances of the present

case.

It notes at the outset the instructions issued by the director

of Straubing prison according to which every fourth prisoner who had

received a visitor had to submit to a body search in order to ensure

that he had not received any prohibited items. Insofar as the applicant

submits that in his case the search was unnecessary, the Commission has

furthermore had regard to a medical expert opinion referred to by the

Government according to which the applicant was considered aggressive.

Indeed, his conduct upon arrest and in prison led the prison

authorities to regard him as dangerous.

The applicant moreover does not refer to any other occasion where

he had to submit to such a search. There is also no indication that

the measure was intended as a form of retribution.

It is true that the applicant refused to undress completely, and

three prison officers then removed his underpants. However, the

applicant offered no physical resistance, and no force was employed by

the police officers.

Finally, the Commission has taken note of the Government's

submissions - not contested by the applicant - that the police officers

conducted only a superficial search in that they looked at the

applicant. During such searches, the person concerned has to open his

mouth, bend over, and move his fingers and toes. However, the

applicant was not touched while this happened.

In view of the concrete circumstances of the case, in particular

that the applicant was considered dangerous and that he was only

superficially examined, the Commission finds that the treatment

complained of does not attain the minimum level of severity so as to

fall within the scope of Article 3 (Art. 3) of the Convention.

The remainder of the application is, therefore, manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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