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S. v. THE FEDERAL REPUBLIC OF GERMANY

Doc ref: 11967/86 • ECHR ID: 001-423

Document date: December 9, 1987

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S. v. THE FEDERAL REPUBLIC OF GERMANY

Doc ref: 11967/86 • ECHR ID: 001-423

Document date: December 9, 1987

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 11967/86

by K.S.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 9 December 1987, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. H.C. KRÜGER Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 9 August 1985

by K.S. against the Federal Republic of Germany and registered

on 14 January 1986 under file N° 11967/86;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows:

The applicant is a German national born in 1936. Living in the

Federal Republic of Germany since 1973, he is now resident in Hanover.

He is a bricklayer, a meteorological technician and a philosopher.

It appears from his submissions that on 3 November 1983 he was

convicted by the Brunswick Regional Court (Landgericht, sitting as

"Schwurgericht") of attempted homicide (versuchter Totschlag) and

sentenced to five years' imprisonment. He served this sentence in

prisons at Hanover and Celle (Lower Saxony) after being detained on

remand in Brunswick until his judgment became final on 8 May 1984 when

his appeal on points of law (Revision) was dismissed by the Federal

Court of Justice (Bundesgerichtshof).

Between 1983 and 1985 the applicant tried to have criminal

proceedings instituted against various persons. Inter alia, he

accused managers of the company he had worked for, including the

victim he was convicted of having tried to kill, of defamation and of

having exposed him to political persecution (politische

Verdächtigung). He also incriminated members of the Public

Prosecutor's Office (Staatsanwaltschaft) in Brunswick and one judge

of the Brunswick Regional Court who had allegedly perverted the course

of justice (Rechtsbeugung). All these attempts were of no avail.

COMPLAINTS

The applicant complains under Articles 6, in particular paras.

3(c) and (d), 10 and 14 of the Convention that the crimnal proceedings

before the Brunswick Regional Court were unfair and that he did not

have the right to put questions to witnesses and to defend himself.

He further complains of his fruitless attempts to have

proceedings instituted against persons he considers to have committed

criminal offences.

He finally alleges violations of Articles 3 and 8 of the

Convention by the prison authorities. He complains that they

intercepted and censored his correspondence. They had also brought

the contents of private letters to the knowledge of other inmates. He

was beaten by wardens after having complained of the state of his

cell. His cell had been searched. Criminals had been instigated and

used to spy on him. He was refused the opportunity to have a long and

possibly undisturbed conversation with his wife who had petitioned for

a divorce. He could have attended his daughter's funeral only if

escorted there by three uniformed officials. Under such circumstances

he had to renounce attendance at the funeral. For more than two years

he was not given permission to work or to exercise any sport.

THE LAW

1. To the extent that the application relates to the applicant's

attempts to have criminal proceedings instituted against other

persons, the Commission recalls that the Convention does not as such

guarantee a right to institute criminal proceedings against third

persons and that the guarantees set out in Article 6 (Art. 6) do not apply to

those proceedings (No. 7116/75, Dec. 4.10.76, D.R. 7 p. 91).

This part of the application must therefore be rejected as

being incompatible ratione materiae with the provisions of the

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

2. The applicant also complains under Articles 6, 10 and 14 (Art. 6, 10,

14) of the Convention about the criminal proceedings leading to his conviction

by the Brunswick Regional Court.

However, according to 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, and within a period of six months from the date on

which the final decision was taken". Even assuming that the

applicant could be considered to have exhausted the domestic remedies

at his disposal despite the fact that he did not lodge a

constitutional complaint (Verfassungsbeschwerde) with the Federal

Constitutional Court (Bundesverfassungsgericht), the Commission notes

that the decision of the Federal Court of Justice which should then be

considered as the final decision regarding the subject of these

particular complaints was given on 8 May 1984, whereas the application

was submitted to the Commission on 9 August 1985, that is more than

six months after the date of this decision.

Furthermore, an examination of the case does not disclose the

existence of any special circumstances which might have interrupted or

suspended the running of that period. In particular, the applicant's

attempts to have criminal proceedings instituted against Public

Prosecutors or a judge of the trial court cannot be considered as effective

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

otherwise affecting the calculation of the six months' time-limit.

It follows that this part of the application has been

introduced out of time and must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

3. Finally, the applicant alleges various violations of

Articles 3 and 8 (Art. 3, 8) of the Convention in respect of his detention and

treatment in prison.

However, again the Commission is not required to decide

whether or not the facts alleged by the applicant disclose any appearance of a

violation of these provisions as, under Article 26 (Art. 26) of the Convention,

it may only deal with a matter after all domestic remedies have been exhausted

according to the generally recognised rules of international law.

In the present case the applicant has not shown that he has

made use of the remedies available to him under German law, in

particular those provided for in the Execution of Penalties Act

(Strafvollzugsgesetz). Neither has he shown that he submitted his

complaints to the Federal Constitutional Court. Consequently, he

cannot be considered to have exhausted the remedies available to him

under domestic law.

The Commission observes that the various letters which the

applicant alleges to have addressed to different authorities or

institutions cannot be considered effective remedies in the sense of

Article 26 (Art. 26) of the Convention.

It follows that the applicant has not complied with the

conditions as to the exhaustion of domestic remedies and his

application must in this respect be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

LEXI

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