AS TO THE ADMISSIBILITY OF
Application No. 13040/87
by Lothar W. ARZT
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 19 January 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
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 1 May 1987
by Lothar W. Arzt against the Federal Republic of Germany and registered
on 25 June 1987 under file No. 13040/87;
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 applicant states that he is a Canadian citizen, born in
1943 in Offenbach/Federal Republic of Germany. He was detained in
prison in Berlin when he lodged the present application and now lives
in Switzerland.
The facts submitted may be summarised as follows.
On 4 March 1986 the applicant was remanded in prison on the
authority of a warrant of arrest (Haftbefehl) issued the same day and
replaced by another warrant issued on 19 August 1986. He was
suspected of having committed fraud and breach of trust. On
22 September 1986 the Berlin Court of Appeal (Kammergericht) ordered
that the applicant's detention on remand should continue. The Court
found that strong suspicion still existed and that there was also a
danger of absconding in view of the sentence which the applicant had
to expect if convicted and in view of his foreign nationality and
residence. Therefore, bail in the amount of DM 50,000 as offered by
the applicant was considered to be insufficient. Furthermore, in the
Court's opinion there was a danger of collusion (Verdunkelungsgefahr).
In this relation the Court stated that the applicant's wife had
contacted the victims in order to persuade them to accept a friendly
settlement. This was considered as an attempt by the applicant to
obstruct the establishment of true facts. Finally, the Court noted
that the investigation concerned a difficult and complex matter,
necessitating that rogatory letters be sent to various countries,
namely South Africa, Switzerland, Austria and Great Britain. The
files of various civil court proceedings also had to be examined.
On 15 January 1987 the Court of Appeal again prolonged
detention on remand. It stated that strong suspicion continued to
exist. The Court noted that the Public Prosecutor had announced that
he would shortly file an indictment. Referring to the difficulties of
the investigation mentioned in the earlier decision of 22 September 1986,
the Court added that in the meantime a medical expert opinion had to
be obtained as the question had arisen whether or not the applicant
suffered from an organic brain disease. The Court concluded that the
length of the detention on remand was still proportionate even though
the applicant might not be convicted on all charges on which the arrest
warrant had been based.
On 8 August 1986 and 23 September 1986 the District Court
(Amtsgericht) Tiergarten refused the applicant's request for
permission to phone his wife. The Court stated that there was danger
of collusion.
On 10 February 1987 the District Court stopped a letter which
the applicant intended to send, via his wife, to a Swiss newspaper.
This decision was confirmed by the Regional Court (Landgericht) and,
on 9 April 1987, by the Court of Appeal. The letter contained, inter
alia, the following statements: "Although innocent I am spending the
twelfth month of detention on remand in complete isolation." "Many
others are detained on remand up to four years and ten months without
having been put on trial."
Leaving the question open whether the applicant's allegations
in respect of alleged denial of adequate medical treatment and
confiscation of documentary evidence were objectionable, the Court of
Appeal found that in any event the applicant's statements in the letter
which was stopped, that he was kept in complete isolation and that many
others were detained on remand up to four years and ten months, were
untrue and a grossly distorted description of the conditions in prison.
The Court noted in this respect that the applicant had admitted that,
despite existing danger of collusion, he was allowed to participate in
the daily exercise period of one hour together with other prisoners.
Furthermore, the case referred to by the applicant to justify his
allegation about the length of detention on remand concerned a Turk
who had been arrested in June 1982 and convicted in June 1984 of
homicide. It was true that the Federal Court quashed the judgment but
the Turk was subsequently convicted again in February 1987. Contrary
to these facts, with his letter the applicant had intended to convey
the impression that persons were detained for more than four years
before they had any occasion to defend their case in a trial. The
measure complained of was therefore considered to be justified in
accordance with Section 119 (3) of the Code of Criminal Procedure
(StPO) for the maintenance of order in prison.
The Court of Appeal added that it considered it inappropriate
that the objectionable passages be blackened or that an explanatory
note be sent with the applicant's letter. However, the Court pointed
out that the applicant was free to rewrite his letter without the
offending passages.
An indictment was filed on 18 February 1987.
On 6 July 1987 the applicant was convicted by the Berlin
Regional Court of fraud (Kreditbetrug) and breach of trust (Untreue)
in two instances. He was sentenced to two years and nine months'
imprisonment.
Also on 6 July 1987 the Court of Appeal rejected as being
inadmissible a complaint by the applicant that the medical treatment
in prison was insufficient. The Court found that, insofar as the
applicant complained that he was not allowed to seek treatment from a
specialist outside the prison, he had not made a request in due form
to the competent trial court's president, but only in his submission
of 12 May 1987 to the Court of Appeal; it was now for the trial court's
president to decide on it. The Court of Appeal further stated that,
according to information received by the prison authorities, the
applicant had not requested physiotherapeutic treatment. Therefore he
could not complain that he did not receive such treatment. According
to the prison director the applicant had accepted to be treated by the
prison psychologist. His present complaint, however, as the Court of
Appeal stated, was not directed against the alleged refusal by the
prison psychologist to treat the applicant.
The applicant did not appeal against conviction and sentence.
He explains that he renounced appealing as this was the only
possibility of being released from prison on remand and expelled to
Switzerland, where he could finally undergo the necessary medical
treatment. The applicant furthermore explains that, by accepting the
judgment, he will be able to recuperate seized documents in order to
prove his innocence in subsequent retrial proceedings. On 4 January 1988
the applicant informed the Secretariat that his new address was in
Switzerland.
COMPLAINTS
The applicant complains that he was wrongly convicted and
sentenced and that his defence had been obstructed. He also complains
of the length of his detention on remand, lack of medical treatment in
prison and the stopping of his letter addressed to a Swiss newspaper.
He invokes Articles 3, 5, 6 and 10 of the Convention.
THE LAW
1. The applicant has complained that he was wrongly convicted and
sentenced and hindered from defending himself adequately.
It is true that Article 6 para. (1) (Art. 6-1) of the Convention
secures to everyone charged with a criminal offence the right to a fair
hearing.
However, the Commission is not required to decide whether or
not the facts alleged by the applicant disclose any appearance of a violation
of this provision 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 failed to appeal against his
conviction and sentence and has, therefore, not exhausted the remedies
available to him under German law. Moreover, an examination of the case does
not disclose the existence of any special circumstances which might have
absolved the applicant, according to the generally recognised rules of
international law, from exhausting the domestic remedies at his disposal.
It follows that the applicant has not complied with the condition as to
the exhaustion of domestic remedies and this complaint must be rejected under
Article 27 para. 3 (Art. 27-3) of the Convention.
2. The applicant has further complained of the length of the detention on
remand which lasted sixteen months, namely from 4 March 1986 until his
conviction on 6 July 1987 by the Regional Court sentencing him to two years and
nine months' imprisonment.
It is true that Article 5 para. 3 (Art. 5-3) of the Convention secures
to everyone charged with a criminal offence and detained on remand the right to
be brought to trial within a reasonable time or to release pending trial.
However, it follows from the various decisions given by the Berlin Court of
Appeal prolonging the applicant's detention on remand that the applicant was
seriously suspected of having committed fraud. In addition, the Court
considered that there existed a danger of collusion and of absconding. The
Court furthermore pointed out that the investigations were complicated, in
particular as rogatory letters
had to be sent to various countries. There is nothing to show that these
reasons were ill-founded and arbitrary and that the applicant's detention on
remand was unduly prolonged or release on bail refused without justifying
reasons.
It follows that this part of the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant has also complained that a letter addressed to his wife,
with the purpose of being forwarded to a Swiss newspaper, was stopped by the
prison authorities.
It is true that Article 8 (Art. 8) of the Convention secures to
everyone the right to respect for his private life and correspondence. However,
according to the uncontested findings of the Court of Appeal, the letter in
question contained untrue and grossly distorted allegations on the conditions
in prison. To this extent the present case can be distinguished from the
Silver and others case, in which the Commission and the Court considered that
the stopping of letters on the basis of a blanket prohibition on prisoners'
letters containing material intended for publication regardless, inter alia, of
the contents of the letter in question, was not "necessary in a democratic
society ... for the prevention of disorder" (Eur. Court H.R., judgment of
25.3.1983, Series A no. 61, pp. 38, 40, paras. 99 and 105; Comm. Report
11.10.80, paras. 344 - 351). Taking into account that the applicant had the
possibility of rewriting the letter without the offending passages, the
Commission concludes that, in view of its contents, the seizure of the letter
was a proportionate measure justified under Article 8 para. 2 (Art. 8-2) of the
Convention, being in accordance with German law and necessary for the
maintenance of order in prison (cf. No 8283/78, Dec. 14.10.80, DR 23 p. 127).
An examination by the Commission of this complaint does not therefore
disclose any appearance of a violation of the rights and freedoms set out in
the Convention and, in particular, in the above Article.
It follows that this part of the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
4. The applicant has finally complained that he did not receive adequate
medical treatment in prison.
The Commission has examined this complaint under Article 3 (Art. 3) of
the Convention, which prohibits inhuman treatment.
It notes that, according to the documents submitted by the applicant,
he was offered some treatment in prison although allegedly not the particular
treatment which he considered necessary. However, the applicant has failed to
show that the treatment offered to him was insufficient. The Commission
further notes that, according to the decision of the Court of Appeal of 6 July
1987, no final decision had been given up to that time regarding the
applicant's request for special medical treatment, as such a request had, for
the first time, been made in the applicant's submissions to that Court. This
request had to be forwarded to and decided by the trial court's presiding
judge.
In these circumstances an examination of this complaint also does not
disclose any appearance of a violation of the rights and freedoms set out in
the Convention and, in particular, in the above Article.
It follows that this part of the application is likewise manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) 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)