SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 46468/99
by Andreas MANOUSSOS
against the Czech Republic and Germany
The European Court of Human Rights (Second Section), sitting on 9 July 2002 as a Chamber composed of
MrJ.-P. Costa, President,
MrL. Loucaides,
MrC. Bîrsan,
MrK. Jungwiert,
MrV. Butkevych,
MrsW. Thomassen,
MrsA. Mularoni, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 25 June 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Andreas Manoussos, is a Greek national who was born in 1964. He is serving a prison sentence in the Rýnovice prison (Czech Republic). The Government of the Czech Republic were represented by Mr E. Slavík, their Agent, succeeded by Mr V. Schorm.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Criminal proceedings against the applicant in the Czech Republic
On 11 June 1996 the applicant was apprehended by the Czech police. He was heard in the presence of an interpreter and accused of forging public documents and of the attempted forgery of bank notes. Several other persons were accused in the same context on the basis of information submitted by the Office for the Suppression of Organised Crime and by German authorities. According to that information, the applicant and four other persons had forged Eurocheques with a view to distributing them abroad, in particular in Germany. They were linked to an organised criminal group in Germany. In addition, the accused had fabricated German identity cards. The applicant refused to have a lawyer assigned to him ex officio and stated that his brother and girl-friend should appoint a lawyer to represent him.
On 12 June 1996 the police investigator requested that the applicant be remanded in custody. On the same day the Prague 6 District Court appointed Mr P.M. to represent the applicant ex officio.
On 13 June 1996 a judge of the Prague 9 District Court heard the applicant in the presence of an interpreter. The judge remanded the applicant in custody. The decision stated that all the accused, but for one, were foreigners and that the actions imputed to them had been committed in several countries. The judge concluded that the accused could abscond and jeopardise the investigation.
According to the Czech Government, on 13 June 1996 a lawyer, Mr E.B., accepted to represent the applicant upon the request of the latter’s girl-friend.
This is contested by the applicant who alleges that Mr E.B. was appointed by his girl-friend on 11 June 1996. According to the applicant, Mr E.B. was only able to visit him eleven days after he had been appointed.
On 10 July 1996 the City Court in Prague dismissed the applicant’s complaint against the remand decision.
On 23 October and 27 November 1996 the applicant was heard in the presence of his lawyer and an interpreter.
On 10 December 1996 the Prague 9 District Court extended the applicant’s detention on remand until 11 April 1997. On 2 April 1997 the applicant’s detention was extended until 11 August 1997. The court noted that the case was complex, that the German authorities had been asked for legal assistance and that the damage which the accused had allegedly caused amounted to approximately ten million Deutschmarks (DEM). Several expert opinions were necesssary with a view to establishing the relevant facts.
On 23 April 1997 the applicant was heard in the presence of his lawyer.
On 19 May 1997 the head physician in Prague-Pankrác prison submitted a certificate according to which the applicant’s state of health was good despite the fact that he had staged several hunger strikes. The doctor expressed the view that the applicant was fit to face the criminal proceedings.
On 21 May 1997 the applicant was heard in the presence of his lawyer.
On 24 July 1997 the Prague 9 District Court extended the applicant’s detention on remand to 11 February 1998. The court noted that the length of the proceedings was due to the complex character of the case, the need to obtain further expert opinions, the wide range of acts imputed to the accused and the fact that the alleged crimes had been committed in several States.
On 22 September 1997 the applicant appointed Ms E.S. to represent him in the proceedings. On 25 November 1997 Ms E.S. informed the police that she would no longer represent the applicant.
On 28 November 1997 several documents of a religious nature were taken away from the applicant on the ground that the volume of documents which he had in his cell was excessive.
On 5 December 1997 the Prague 9 District Court appointed Mr E.B. to represent the applicant ex officio.
On 16 December 1997 the applicant was examined. On 28 January 1998 he filed a request for release.
On 4 February 1998 the Prague 9 District Court extended the detention of the applicant and of his co-accused to 12 April 1998. The decision stated that a considerable time was still required to study the case-file and prepare the indictment. In the court’s view, there was a risk that the accused could abscond, jeopardise the investigation or, possibly, commit further offences.
On 8 April 1998 the public prosecutor indicted the applicant and four other persons for the forgery of notes and public documents in the context of organised crime.
A hearing before the Prague City Court was held on 20 May 1998. The applicant, who was represented by his lawyer, complained that he had not been provided with a translation of the indictment into German. The court decided to allow the applicant more time to prepare his defence and adjourned the case until 4 August 1998. The City Court further dismissed the applicant’s request for release.
On 28 May 1998 the Ministry of Justice of the Czech Republic requested assistance from the German authorities.
On 2 and 15 June 1998 the applicant requested the Prague City Court to appoint a different lawyer to represent him in the proceedings.
On 4 June 1998 the High Court dismissed the applicant’s complaint against the City Court’s refusal to release him. On the same day the High Court extended the detention of the applicant and his co-accused to 31 January 1999.
On 16 January 1998 the applicant requested that a different lawyer be appointed to represent him ex officio. On the same day the applicant filed a “criminal complaint” with the Constitutional Court in which he alleged that the police investigator, the public prosecutor as well as the judges dealing with his case had violated his rights.
On 14 July 1998 the Prague City Court appointed a different lawyer, Mr I.P., to represent the applicant ex officio. On the same day the applicant asked the High Court to assign a German lawyer to him.
On 21 July 1998 the applicant informed Mr. I.P. that he could not accept his assistance as he wished to be represented by a different lawyer. On the same day the German authorities informed the Czech authorities that criminal proceedings had been brought against the applicant in Germany.
The Prague City Court proceeded with the case on 4 and 5 August 1998. The applicant requested that a different lawyer be assigned to him. He also challenged the City Court judges. The case was adjourned.
On 8 September 1997 the High Court dismissed the applicant’s complaint about the City Court judges’ lack of impartiality. It further refused to appoint a different lawyer to represent the applicant ex officio and noted that the applicant was free to appoint a lawyer of his own choice.
A hearing before the City Court was held on 16 and 17 September 1998. The applicant requested that further evidence be taken. The case was adjourned.
On 14 October 1998 the Prague City Court convicted the applicant of forgery on several counts as a member of a criminal association and sentenced him to eleven years’ imprisonment. The applicant appealed.
On 4 December 1998 the applicant requested that Mr I.P. should no longer represent him ex officio. On 7 and 11 December 1998 Mr I.P. requested that he be released from the obligation to represent the applicant as no confidence existed between him and his client.
On 4 January 1999 the Prague City Court allowed the request and appointed a different lawyer, Mr J.K., to represent the applicant ex officio.
On 12 January 1999 the High Court extended the applicant’s detention on remand to 30 June 1999.
On 22 January 1999 the presiding judge of the High Court put a note in the case-file according to which the applicant had corresponded with one of his co-accused without authorisation. On 25 January 1999 the applicant complained to the High Court that his correspondence was monitored.
On 1 February 1999 the applicant stated that he no longer wished to be represented by Mr J.K. He complained that the lawyer’s visits were sporadic, that he had not responded to the applicant’s letters and that he also acted, in different cases, as an official interpreter for the City Court. The applicant therefore expressed doubts about the lawyer’s impartiality. In his letter the applicant further stated that one of his previous lawyers had declared that the State had not paid his fees for the past five years. He requested that a lawyer practising in Rumburk be assigned to him.
On 8 and 16 February 1999 the applicant complained to the High Court that all the lawyers who had been assigned to him had failed to represent him in an appropriate manner. On the latter date the applicant also informed the High Court that he was on a hunger strike.
On 18 February 1999 Mr J.K. informed the High Court that he had studied the case-file, that he had contacted the applicant, translated the first instance judgment into German and given it to the accused. At the lawyer’s request, the applicant’s relatives paid the costs of the translation.
A hearing before the High Court was held on 9 March 1999. The applicant, who was on hunger strike, collapsed when he was about to be brought to the court room. The High Court therefore decided to deal with the charges against the applicant separately.
On 4 May 1999 another hearing was held before the High Court. The applicant was represented by Mr J.K. and he was also assisted by an interpreter. Representatives of the media were present. A report established by the prison medical service indicated that the applicant was able to take part in the hearing.
The High Court quashed the first instance judgment and convicted the applicant, as a member of an organised group, of the forgery of notes and public documents. The High Court established that the applicant and several other persons had forged Eurocheques and German identity cards. The High Court did not share the Prague City Court’s view that the applicant had committed the offences as a member of a criminal association. The applicant was sentenced to eleven years’ imprisonment in a high security prison, and to expulsion from the Czech Republic.
At the hearing the applicant stated that he had not been provided with due legal assistance and that he had not been able to prepare his defence. He also complained that he could not question several witnesses who had been heard by German authorities and whose statements had been read out at the hearing before the first instance court.
The High Court found that the City Court had established all relevant facts and that its reasoning was relevant and sufficient. It noted that the witnesses heard by German authorities had been invited to the hearing at first instance, but had failed to appear. The fact that their statements were read out by the court after they had failed to appear at the hearing was not contrary to the relevant provisions of the Code of Criminal Procedure. In addition, the statements of those witnesses were corroborated by the statements of other witnesses and the applicant’s co-accused, as well as by comprehensive documentary evidence including expert opinions. The High Court further noted that the lawyers representing the applicant had changed six times due to the applicant’s objections. The applicant’s presumption that he was free to choose the lawyer who should be appointed to represent him ex officio was erroneous.
On 24 May 1999 the applicant complained to the Supreme Court that the High Court judges had been biased. The Supreme Court rejected the complaint as being both unsubstantiated and lodged out of time.
According to the applicant, there was an interference with his correspondence whilst he was detained on remand. For example, in a letter of 27 July 1998 addressed to the Czech Bar Association, the applicant complained that a letter sent to a German lawyer had been opened. In another letter of 20 April 1999 and addressed to a German law firm, the applicant alleged that his correspondence had been delayed between 1 June 1996 and 15 October 1998 due to the fact that it had been monitored. In a letter of 17 July 1998 and addressed to the United States Embassy in Prague, the applicant alleged that his correspondence addressed to various foreign diplomatic representations had been monitored.
The Government contend that the applicant’s allegations are unsubstantiated and affirm, with reference to the relevant law, that the correspondence between the applicant and his lawyers had neither been monitored nor delayed.
While he was detained on remand, the applicant was placed in an 8m² cell with two other persons in which there was no hot water. He was allowed to take a shower once a week and could not practice sport. On several occasions he was not allowed to meet with persons from outside the prison.
On 4 May 2001, while he was serving the prison term, the Prague City Court allowed the applicant’s request that an interpreter be assigned to him so that he could study the criminal file concerning his case.
2. The applicant’s attempts to obtain redress before the Constitutional Court of the Czech Republic and the Czech Bar Association
In letters of 8 February and 23 March 1998 the applicant asked the Constitutional Court to provide him with information about the provisions of the Constitution of the Czech Republic.
On 27 March 1998 the vice-president of the Constitutional Court informed the applicant that the Constitutional Court could not entertain his submissions as they were not a formal request for proceedings to be instituted. The applicant was further advised that he had to be represented by a lawyer if he wished to file a constitutional appeal.
On 15 February 1999 the applicant complained to the Constitutional Court about the alleged unfairness of the criminal proceedings against him. He claimed that the City Court had refused to grant his request for several witnesses to be heard and that his conviction had been arbitrary. The applicant further complained that the High Court had refused to provide him with a translation of the first instance judgment and that the lawyer appointed to represent him ex officio, Mr. J.K., was willing to translate it only if the applicant paid him DEM 600. The letter stated that Mr J.K. had expressed the view, on 6 February 1999, that the applicant had no chance of succeeding before the Constitutional Court. The applicant concluded that he had no confidence in that lawyer.
On 22 February 1999 the applicant sent another letter to the Constitutional Court in which he complained that the High Court had refused, on 9 February 1999, to appoint a lawyer of his own choice to represent him ex officio. He also complained that he had not enough time to prepare his defence in the appellate proceedings.
As the complaints did not satisfy certain formal requirements, a Constitutional Court judge requested the applicant, on 25 March 1999, to rectify the shortcomings and, in particular, to appoint a lawyer to represent him in the proceedings within sixty days. The applicant was advised that he could appoint a lawyer of his own choice or ask the Czech Bar Association to assign a lawyer to him if he did not trust his representative from the criminal proceedings.
On 29 March 1999 the applicant requested the Czech Bar Association to assign a lawyer to him.
On 31 March 1999 and on 6 April 1999 the applicant was informed that Mr J.S., a lawyer practising in Prague, had been assigned to represent him in the proceedings before the Constitutional Court.
On 2 April 1999 the applicant complained to the Czech Bar Association that Mr J.K., the lawyer appointed ex officio, had failed to represent him in an appropriate manner. The applicant alleged that the lawyer disregarded his interests and that he had failed to take appropriate action to defend the applicant effectively. In particular, the applicant maintained that the lawyer deliberately disregarded the fact that the constitutional complaints had to be filed urgently with a view to protecting his defence rights in the on-going criminal proceedings.
In a letter of 14 April 1999 the applicant complained to the Constitutional Court that his defence in the criminal proceedings had been impaired by the Czech secret services and that he had no confidence in the Czech Bar Association or the lawyers by whom he had been represented ex officio. He asked the Constitutional Court to provide him with a reliable lawyer and to prevent the High Court from holding the hearing scheduled for 4 May 1999.
In a letter addressed to the High Court in Prague on 16 April 1999 the applicant pointed out, inter alia, that Mr J.K. had informed him that a constitutional complaint about the criminal proceedings could only be filed after the delivery of the final decision.
On 21 April 1994 Mr J.S. informed the applicant, after consultation with the presiding judge of the High Court and the representatives of the Czech Bar Association, that his assignment had been unlawful. The lawyer explained that Mr J.K. was the applicant’s legal representative appointed ex officio and that the relevant regulations excluded that a second lawyer be assigned by the Bar Association in such a case. The letter stated that the Bar Association had not had at its disposal all the relevant information. The applicant was advised to seek assistance from Mr J.K.
In a letter of 26 April 1999 the Czech Bar Association confirmed the revocation of Mr J.S.’s assignment.
On 8 June 1999 the Constitutional Court rejected the applicant’s constitutional appeal on the ground that the applicant had failed to appoint a lawyer, as required by the relevant law, despite the fact that he had been requested to do so within sixty days on 26 March 1999. The decision stated that the applicant had challenged the Prague City Court’s judgment of 14 October 1998 and the conduct of the proceedings before the appellate court without having specified the relevant facts or the rights allegedly violated.
On 23 August 1999 the head of the Control Department of the Czech Bar Association dismissed the applicant’s complaint of 2 April 1999 about Mr J.K. as being unsubstantiated.
3. Facts relating to the service of the prison sentence by the applicant
On 5 May 1999 the applicant started serving his prison sentence in the Prague-Pankrác prison. On 10 May 1999 he was transported to the prison in Bělušice. On 10 August 1999 he was transferred to the Valdice prison for medically prescribed dietetic reasons. On 7 March 2000 the applicant was taken to the prison in Plzeň. On 24 April 2001 he was brought to the prison in Rýnovice.
Most of the relevant facts which occurred while the applicant served his sentence are disputed between the parties.
(i) Alleged interference with the applicant’s correspondence and his right under Article 34 of the Convention to file an individual application
According to the applicant, a letter sent by the Court’s Registry on 14 June 1999 and handed to him on 28 June 1999 had been opened and subsequently closed. The applicant further submits that another letter sent to him by the Court’s Registry on 12 July 1999 was transmitted to him opened on 15 July 1999. The envelope of a letter from the Court’s Registry which was dispatched on 28 September 1999 was handed to the applicant damaged. It was closed with yellow tape and the applicant was infomed that it had reached the Czech post office damaged. Another letter from the Court’s Registry dated 31 August 1999 was handed to the applicant on 9 September 1999. The envelope was taped and bore a post stamp indicating that it had arrived damaged. According to the applicant, a letter from the Court’s Registry sent on 26 February 2001 was handed to him opened.
The Government deny the applicant’s allegations that his correspondence with the Court was monitored, and maintain that the applicant did not complain of the above facts to the prison administration.
The applicant’s other correspondence has been monitored. The letters which he wished to send out were returned to him on several occasions with the explanation that the stamps on them were either insufficient or damaged. This resulted in several days’ delay in sending out the applicant’s correspondence.
On 28 December 2001 the applicant received a letter from the German Federal Constitutional Court. He refused to accept it from the prison officer as it had been opened and monitored.
The applicant was not allowed to photocopy documents. He alleges that he was refused carbon paper on several occasions and that he was only allowed to use a typewriter sporadically.
The Government contend that the applicant could use his typewriter in the Rýnovice prison and that he had always been allowed to buy carbon paper if he had enough money in his account.
In 1999, while he was detained in the Bělušice prison, the applicant was not allowed to send an urgent telegram to the European Court of Human Rights in which he wished to complain about the violation of his human rights.
On 9 August 1999, when he was informed about his transfer to another prison, the applicant was distressed. He was not allowed to send a telegram to the Greek Embassy which read “S.O.S., I get psychologically tortured, please alert Strasbourg”. The applicant was told that the telegram could not be sent as his account had been blocked due to his transfer to another prison.
In November 1999 and on 4 January 2000 the applicant was not allowed to telephone the Registry of the Court or a German lawyer with a view to resolving the problem of his legal representation in the proceedings before the Court.
On 13 January 2000 the Valdice prison administration, which had been requested by the Government Agent to comment on the applicant’s various allegations, asked the applicant to specify his complaints against the Czech Republic as his submissions had been of a general character. Reference was made to the Government Regulations on Dealing with Complaints, Submissions and Petitions of 1958 (“the Regulations”). The applicant refused to comment as the prison administration was not a party to the proceedings before the Court.
On 18 February 2000 the applicant sent a telegram to the Court reading “SOS torture”.
On 4 January 2001 the Plzeň prison administration invited the applicant to specify his complaints to the Court on the ground that his submissions were unclear and that the Agent of the Government had asked the administration to submit comments on the applicant’s complaints. According to the record which was drawn up pursuant to section 9 of Regulation no. 150/1958, the applicant stated that he disaproved of the conditions in the prison, that his right to have visits was restricted, that he was not allowed to make photocopies or to have telephone conversations in English with the Registry of the Court. The applicant also stated that he feared that money which his relatives would send him could be used for paying his debts without his consent.
On 11 May 2001 the applicant was allowed to make a 30 minute telephone call to the Registry of the Court. By a letter of 28 May 2001, the applicant informed the Court that the prison administration had recorded the conversation and that the recording had been handed over to the public prosecutor. The applicant further informed the Court that the prison officers had read a letter from Mr W.F., a German national assisting the applicant in the proceedings before the Court. The prison administration explained to the applicant that Mr W.F. had not been duly appointed as the applicant’s representative and that the covering envelope did not indicate that the correspondence was exempted from control due to its special nature.
On 5 January 2001, on 30 May 2001 and on 10 December 2001 the applicant was not allowed to send telegrams in which he wished to inform the Court about disciplinary sanctions imposed on him. Subsequently, the applicant was able to submit the relevant information to the Court by ordinary mail.
On several occasions the applicant’s documents and belongings were searched and returned to him disordered.
(ii) Treatment to which the applicant was subjected while serving his prison term
The applicant submits that the conditions in which he has served his prison term have been inhuman and degrading. In particular, he maintains that the prisons have been overcrowded, that he was placed in cells without an electric power socket or hot water, that he has only been allowed to have a walk for an hour a day and that he has not been provided with vegetarian food.
The applicant suffered from eczema on his hands. On 19 June 2000 the prison doctor refused to administer an ointment with corticoids to him, explaning that such treatment was subject to a supplementary payment. The doctor arranged for the applicant’s examination by a dermatologist on 1 August 2000. According to the applicant, the latter refused to treat him as he considered that the applicant was not suffering from any disease.
The applicant further submits that he has not been provided with adequate health care as he has no sickness insurance in the Czech Republic.
The Government contest the applicant’s allegations and submit that all prisoners are provided with adequate health care, the cost of which is born, when a prisoner is indigent, by the prison administration. They also refer to the conclusions of a medical commission according to which there were no shortcomings in the health care offered to the applicant.
The prison authorities refused to provide the applicant with a taperecorder and other facilities which he requested so that he could study foreign languages.
In accordance with the prison regulations, the money which the applicant had on his prison account was used, to the extent that it exceeded the statutory minimum reserved to cover a prisoner’s basic needs, to pay the applicant’s debts relating to the criminal proceedings and the enforcement of the prison sentence.
The applicant claims that his right to contact persons outside the prison and to receive visitors was unduly limited.
This is contested by the Government who maintain, with reference to a letter from the Director General of the Prison Administration dated 26 January 2001, that the applicant’s requests for visits by his legal representative, members of his family and other persons close to him had always been granted.
On 12 February 2001 Mr W.F., a German national assisting the applicant in the proceedings before the Court, informed the Court that the applicant had been subjected to inhuman treatment as a reprisal for his complaints to the Court. The letter indicated that on 5 January 2001 the applicant had had to undress in a cold room and was searched by several prison officers. Subsequently the applicant was disciplined by confinement in a special cell for three days where the conditions were inhuman. After filing a written complaint about this with the prison director, he was disciplined with a further three days’ confinement in the special cell. During this period, the authorities searched and removed the applicant’s belongings.
The Government contest these allegations. They maintain, with reference to the relevant prison documents and statements by the prison officers, that the applicant was disciplined on 5 January 2001 by being placed in a closed prison wing for three days except when participating in the collective activities organised within the prison. The disciplinary sanction was imposed as the applicant had been late for breakfast on 4 January 2001.
The applicant wrote a remark on the disciplinary form, explaining that he had not known that he could not go to the dining room after the expiry of the breakfast period. The form, which the applicant refused to sign, indicates that he did not file a complaint against the decision within the statutory three day time-limit. The sanction was enforced from 12 to 15 January 2001. On 29 March 2001 the prison administration deleted it from the applicant’s prison record in view of his subsequent good behaviour.
Following the Court’s decision to communicate this part of the application to the respondent Government, the applicant was asked on 19 April 2001 to explain his complaints to the Court. Reference was made to Regulation no. 150/1958. The prison administration drew up a record of the ensuing meeting which was signed by the applicant, according to which the applicant denied the aforementioned allegations by Mr W.F. and stated that he was no longer in contact with him. The applicant also stated that his complaints were sufficiently clear and specific and that he would make no further comments on them to the prison administration.
The Government deny that any documents were taken away from the applicant by the prison administration in the context of the disciplinary sanction imposed on him. They refer to written statements by two prisoners indicating that the applicant had left his documents with them before he was placed in the closed wing and that he had recuperated them afterwards. The documents were neither read nor removed by anybody, and the applicant never made any remarks about this to the prisoners concerned.
On 30 May 2001 the applicant was disciplined with five days’ imprisonment in the closed wing for repeatedly disobeying a prison officer who had asked him to move to a different cell. The applicant filed a complaint which was dismissed by the prison administration on 4 June 2001.
The applicant was placed in the closed wing on 30 May 2001 at 9.30 p.m. According to him, he was distressed and collapsed when he was put in the cell which was insalubrious. The prison officers failed to call a doctor.
These allegations are denied by the Government. They refer to a record drawn up by the the prison officer who had placed the applicant in the closed wing on 30 May 2001, according to which the applicant had refused to co-operate in drafting a list of his belongings which were to be stored separately. The prison officer checked on the applicant several times during the night and the applicant had not complained of any pains, or shown any signs of illness. The officer categorically denied the applicant’s allegation that he had lost consciousness.
On 31 May 2001 the applicant repeatedly refused to participate in the elaboration of a list of his belongings which was to be drawn up, in accordance with the regulations, in the context of his placement in the closed wing. Four prison officers therefore drew up and signed such a list indicating where the applicant’s items had been placed. The applicant refused to sign it.
On 1 June 2001 the applicant asked the prison officers to send a telegram to the Court which read: “S.O.S! Torture! Punished again!”. The request was dismissed with the explanation that the applicant’s means did not suffice for paying the postage. As the telegram indicated that the applicant had been tortured, the prison administration handed the case over to the police. The applicant refused to co-operate with the latter, alleging that they were a part of the system against which he complained. Subsequently an investigation was carried out by the competent public prosecutor which did not disclose any violation of the applicant’s rights.
On 4 June 2001 a disciplinary sanction of five days in the closed wing was imposed on the applicant for failure to co-operate in preparing the list of his belongings. The applicant did not file a complaint.
On 5 June 2001 the applicant was hospitalised in the prison ward as he had health problems.
According to a record of 6 June 2001, the applicant’s belongings were sealed in the presence of eight prison officers and placed in storage until their withdrawal by the applicant. In a letter of 21 August 2001 the applicant informed the Court that his documents had been returned to him in disorder.
On 9 August 2001 the prison authorities asked the applicant to provide more detailed information about the object of his complaints with reference to Regulation no. 150/1958. According to the record which was signed by him, the applicant stated that he would not comment on his complaints to the Court as they were directed against the Czech Republic. The applicant concluded that it was for the Czech Government to submit their reply to the Court.
In a letter delivered on 14 January 2002 the applicant informed the Court that, on 10 December 2001, the prison officers had checked his belongings and that he had subsequently been taken to the closed wing where he was kept for 48 hours. According to the applicant, he was not provided with toilet paper, soap or a tooth brush. The applicant states that his files and documents were “devastated” and cannot be used anymore.
4. Proceedings against the applicant in Germany
On 7 May 1996 the German authorities informed the Czech State Attorney’s Office that several persons including the applicant were suspected of offences and asked the Czech authorities for assistance.
On 25 August 1998 the Leipzig public prosecutor informed the applicant that the German authorities could not provide him with legal assistance in respect of the criminal proceedings against him in the Czech Republic. The letter further stated that the prosecutor would decide whether or not he would issue an international arrest warrant against the applicant and request his extradition to Germany after the delivery of the final decision by the Czech courts.
Subsequently, the German authorities requested that the applicant be extradited to Germany. In a letter of 30 August 2001 the applicant’s father was informed that the Czech Minister of Justice had agreed to the applicant being extradited to Germany after serving his prison sentence.
On 14 May 2001 the applicant complained to the German General Prosecutor’s Office that his prosecution in Germany would be contrary to the principle of ne bis in idem.
Following the applicant’s accusation of fraud and other offences, the Leipzig Regional Prosecutor appointed a lawyer on 8 August 2001 to represent the applicant ex officio in the proceedings in Germany.
B. Relevant Czech law
Constitution
Article 10 provides that the ratified and promulgated international treaties on human rights and fundamental freedoms, by which the Czech Republic is bound, shall be applicable as directly binding regulations having priority over the law.
Charter of Fundamental Rights and Freedoms (Constitutional Act no. 2/1993)
According to Article 3 § 1, fundamental human rights and freedoms are guaranteed to everybody irrespective of sex, race, colour of skin, language, faith, religion, political or other conviction, ethnic or social origin, membership of a national or ethnic minority, property, birth, or other status.
According to Article 8 §§ 1 and 2, personal liberty is guaranteed. Nobody shall be persecuted or deprived of their liberty save for reasons and in a manner prescribed by law.
Article 10 §§ 1 and 2 provides inter alia that everybody is entitled to the protection of his or her human dignity or personal integrity, and against unauthorised interference with private or family life.
According to Article 13, nobody may violate the confidentiality of correspondence or other papers and records, whether privately kept or sent by post or in another manner, except in cases and in a manner specified by law.
Article 31 guarantees inter alia to everybody the right to the protection of his or her health.
Article 36 provides that everybody can claim his or her rights in a prescribed manner before an independent and impartial tribunal or, in certain cases, before another organ.
According to Article 38, everybody is entitled to a fair and public hearing within a reasonable time, in his or her presence, and to comment upon all the evidence submitted.
Constitutional Court Act (Act no. 182/1993, as amended)
Section 72(1)(a) provides that a constitutional appeal may be introduced by any natural person who claims to be the victim of a breach of the fundamental rights or freedoms recognised in a constitutional law or an international treaty (Article 10 of the Constitution) by a legitimate decision taken in proceedings to which he or she was a party, and being a measure or interference by ‘a public authority’. According to paragraph 2, a constitutional appeal shall be submitted within a period of sixty days. If the law affords a remedy for the protection of rights, this period starts to run on the day when the final effective decision becomes enforceable or, if no such remedy exists, on the day on which the impugned events occurred.
According to section 75(1), a constitutional appeal is inadmissible if the person concerned failed to exhaust all the procedural remedies available in law for the protection of his or her rights.
Section 30(1) provides that the appellant must be represented by an advocate, a commercial lawyer or a notary to the extent provided for in the relevant special law.
Section 34(1) provides that a constitutional appeal shall be submitted in writing to the Constitutional Court. The appeal shall include the following information: the person who is making the appeal, the matter to which it relates, and its object. The appeal must be signed and dated. Furthermore, it shall include a true description of the crucial facts, indicate the evidence which the appellant will introduce, and specify the claim. The appeal shall contain the other elements required by this Act. According to paragraph 2, the appeal shall be submitted in a sufficient number of copies so that the Constitutional Court as well as each party to the appeal may have a copy.
According to section 82, in its judgment the Constitutional Court shall hold that it allows the constitutional appeal in its entirety, dismisses it in its entirety, or partially allows and partially dismisses it. If the court allows the constitutional appeal, it shall inter alia declare in its judgment which of the constitutionally guaranteed rights or freedoms or which provision of a constitutional act or an international treaty were violated, and what act by a public authority perpetrated the violation. If it allows the constitutional appeal of a natural person, the court shall annul the contested decision of the public authority, or, if a constitutionally guaranteed fundamental right or freedom has been violated as a result of an action by a public authority other than a decision, the court shall order the authority to discontinue the violation and order it, to the extent possible, to restore the situation to that which existed prior to the violation.
Code of Criminal Procedure (Act no. 141/1996, as amended)
Article 41 provides that a lawyer is obliged to provide legal assistance to the accused person, to use effectively all lawful means of defence and, in particular, take care that all relevant facts be established which prove the accused person’s innocence or attenuate his or her culpability.
Execution of Prison Sentences Act (Act no. 169/1999, as amended)
Pursuant to section 17(3), correspondence between a prisoner and inter alia a lawyer appointed to represent him or her, public authorities of the Czech Republic or an international organisation which is competent to examine submissions concerning the protection of human rights on the basis of an international treaty by which the Czech Republic is bound, shall not be subjected to any control. Such correspondence shall be sent to the addressee and delivered to the prisoner without delay.
Section 18 provides that a prisoner shall be allowed, in justified cases, to use a telephone with a view to contacting a close person. When it is in the interests of his or her rehabilitation or for other serious reasons, the prisoner may also be allowed to contact other persons by telephone. The costs of such calls are to be born by the prisoner and the prison administration is authorised to control the contents of the conversation.
Under section 25(4), a prisoner who has failed to pay inter alia the costs and expenses relating to the criminal proceedings against him or her, or damage caused to the prison administration in the course of the enforcement of the prison sentence, may only use his or her money deposited with the prison for buying basic hygienic items, for paying such debts or judicial and administrative fees, or for the cost of health care.
Section 26(1) provides that a prisoner has a right to file complaints and requests to the competent authorities in order to enforce the rights and interests protected by law.
Pursuant to Section 26(3), a prisoner is entitled to assistance by a lawyer. The latter shall be allowed to correspond with the prisoner, within the limits of his authority, and to talk to him or her in the absence of another person.
Section 35(1) provides that a convicted person is obliged to pay the costs of the enforcement of his or her prison term. If need be, the prison administration may use the prisoner’s money deposited in the prison for this purpose.
According to section 79, the medical expenses in respect of an uninsured prisoner are to be met by the prison service.
Rules on the Execution of Prison Sentences (Decree of the Ministry of Justice no. 345/1999)
Section 34(1) and (2) provide that a prisoner has a right to submit complaints and requests to national authorities or such international authorities and organisations which are considered, on the European and world level, to be part of the process of gathering and examining information concerning violations of human rights including the European Court of Human Rights.
Legal Profession Act (Act no. 85/1996)
Pursuant to section 16(1), an advocate is obliged to defend the justified interests of his or her client and to respect the latter’s instructions unless they are contrary to the law or the rules of the legal profession. In such a case, the advocate shall advise the client accordingly.
Under Section 16(2), an advocate shall act honourably and in good faith. He or she shall consistently use all lawful means available which, according to his or her belief, may be to the client’s benefit.
Section 18(2) provides that everyone has the right to legal representation. Those who cannot find legal representation may ask the Bar Association to appoint an attorney.
Rules on Legal Fees (Decree no. 177/1996, as amended)
According to section 12, the Bar Association may decide that the remuneration of the lawyer’s fees shall be reduced or waived if it assigns a lawyer to a person who could not find legal services and his or her social and financial situation justifies such a decision.
Government Regulations on Dealing with Complaints, Submissions and Petitions (Decree no. 150/1958)
Section 6(1) provides that all complaints shall be examined thoroughly and without delay.
Pursuant to section 9, a written record shall be drawn up of the oral examination of a complaint. It shall comprise the names of all persons present, a summary of the conversation and its outcome, and also indicate that the persons present were acquainted with the record. It shall be signed by the persons involved who may, if need be, indicate in writing that they disagree with the contents and state the reasons therefor.
COMPLAINTS
Complaints in respect of the Czech Republic
1. The applicant complains that he was apprehended and detained unlawfully, that the length of his detention on remand was excessive and that his applications for release were not decided upon speedily. He thereby alleges a violation of Article 5 §§ 1 (a), 2, 3 and 4 of the Convention.
2. The applicant further complains that his right under Article 6 of the Convention to a fair hearing within a reasonable time by an independent and impartial tribunal was not respected. In particular, he alleges that he could not defend himself through a qualified lawyer of his own choice, that the Czech authorities refused to provide him with copies of the documents necessary for the preparation of his defence, that the City Court failed to hear several witnesses and that he was not provided with a translation of the Prague City Court’s judgment of 14 October 1998.
3. Under Articles 8 and 9 of the Convention, the applicant complains that
(i) his friends and acquaintances were not allowed to visit him on several occasions and that he could not practice sport regularly while he was detained on remand;
(ii) that his correspondence was monitored;
(iii) a part of his documents of a religious nature was taken away from him when he was detained on remand;
(iv) that he was not allowed intimate visits in prison; and
(v) that his telephone conversation with the Court’s Registry was recorded.
4. The applicant alleges a violation of Article 3 of the Convention in that the conditions of his detention were degrading and that he was not provided with appropriate health care in prison.
5. Under Article 1 of Protocol No. 1, the applicant complains that a part of the money which he had on his account in the prison was used without his consent to pay debts he had incurred in respect of the Czech Republic.
6. The applicant complains under Article 2 of Protocol No. 1 that the prison authorities refused to provide him with a tape-recorder and other facilities for the study of foreign languages.
7. The applicant alleges a violation of Article 4 of Protocol No. 7 in that additional restrictions and disciplinary sanctions were imposed on him by the prison authorities.
8. Under Article 34 of the Convention, the applicant complains that
(i) on several occasions he was not allowed to make telephone calls or send urgent telegrams to the Court’s Registry;
(ii) he could not use a typewriter and was not provided with carbon paper and adequate facilities for preparing his application or copying the relevant documents;
(iii) his belongings including his documents were removed on several occasions and returned disordered;
(iv) several letters sent to him by the Court’s Registry were opened; and
(v) he was questioned about his complaints to the Court by the prison authorities.
9. With reference to the above matters, the applicant also alleges a violation of Articles 13, 14 and 18 of the Convention.
Complaints in respect of Germany
10. The applicant alleges a violation of Article 4 of Protocol No. 7 in that the German authorities intend to prosecute him for the same offences of which he was convicted in the Czech Republic.
11. The applicant complains under Articles 5 §§ 1, 2, 4 and 5 of the Convention that the German authorities, by secretly co-operating with the Czech authorities, were jointly responsible for his allegedly unlawful deprivation of liberty in the Czech Republic.
12. Under Articles 6 and 14 of the Convention, the applicant complains that the German authorities violated his right of defence in that they furnished information about him to the Czech authorities and they failed to ensure the attendance before the Czech courts of witnesses who had been heard in Germany.
13. Under Article 8 of the Convention, the applicant complains that his letters to Mr W.F. were monitored by the prison administration in Saarbrücken where Mr W.F. was detained.
PROCEEDINGS BEFORE THE COURT
On 5 March 1999 the Section Registrar informed the Government of the Czech Republic of the introduction of the application pursuant to Rule 40 of the Rules of Court.
On 11 May 1999 the Court communicated the application to the Government of the Czech Republic and invited the parties to submit observations on the applicant’s complaints under Articles 5 and 6 of the Convention. On 7 September the Court put additional questions to the parties relating to the alleged violation of the applicant’s rights under Article 8 § 1 of the Convention.
The Government of the Czech Republic replied on 9 August 1999 and 1 December 1999.
The applicant submitted numerous documents in which he both reacted to the Government’s observations and alleged further violations of his rights.
On 27 August 1999 the President of the Section decided to grant legal aid to the applicant in respect of his application against the Czech Republic.
On 18 January 2000 a German lawyer informed the applicant that he could not accept his request to represent him as the sum payable under the Court’s legal aid scheme was unlikely to cover all his costs and expenses.
Following the applicant’s failure to find a suitable lawyer, the President of the Czech Bar Association recommended, following a request by the Court’s Registry, a Czech lawyer who was prepared to represent the applicant before the Court. On 21 July 2000 the applicant informed this lawyer that he would not accept to be represented by her. He explained that the lawyer was dependent on the Czech Bar Association which had earlier violated his rights.
In August 2000 the applicant informed the Court that he wished to be represented by Mr W.F., a German national. The President of the Section directed that the latter could not represent the applicant under the legal aid scheme funded by the Council of Europe as he did not meet the requirements laid down in Rule 36 § 4 (a) of the Rules of Court. The applicant was informed that Mr W.F. could nevertheless assist him, if he so wished, in presenting the case to the Court. Subsequently the applicant informed the Court that Mr W.F. was prevented from assisting him as he was serving a prison sentence in Germany. The applicant stated, in particular, that the prison administration in Saarbrücken monitored the letters he had addressed to Mr W.F.
On 5 December 2000 the Court invited the Government of the Czech Republic to submit their comments on the alleged restrictions on the applicant’s contacts with persons outside the prison and on an alleged misappropriation of his money. The Government were also invited to comment on the applicant’s complaint that he was not provided with adequate facilities to present his observations to the Court.
The Government replied on 7 February 2001. The applicant submitted several letters in which he raised further complaints under Articles 3 and 34 of the Convention.
On 20 March 2001 the Court invited the parties to submit observations on those complaints. The Government of the Czech Republic replied on 1 June 2001, and on 31 August 2001 they submitted further observations on the applicant’s allegations that he had not been provided with adequate health care. The applicant submitted his comments in several letters in which he made also further complaints to the Court.
On 10 October 2001 the Government argued that the applicant had abused the right of individual application, within the meaning of Article 35 § 3 of the Convention. They pointed out that the applicant behaved in an offensive and provocative manner towards the Czech authorities, that he used insulting language in his submissions and that he constantly submitted unsubstantiated complaints.
On 30 November 2001 the Section Registrar warned the applicant of the potential consequences of a persistent use of insulting or provocative language in abuse of the right of petition.
THE LAW
Alleged abuse of the right of individual application by the applicant
1. The Government of the Czech Republic contend that the applicant abused the right of individual application in that he repeatedly filed unsubstantiated complaints, deliberately perpetrated the situation of which he complains before the Court, and made unsubstantiated accusations and offensive remarks about the political representatives and civil servants of the Czech Republic in his submissions to the Court.
The Court recalls that the persistent use of insulting or provocative language by an applicant may be considered an abuse of the right of application within the meaning of Article 35 § 3 of the Convention (see, mutatis mutandis, Stamoulakatos v. the United Kingdom, application nos. 41117/98, 41119/98, 42204/98 and 42212/98, decision of 18 January 2001, unpublished).
The Court notes, on the one hand, that in some of his submissions the applicant used insulting expressions about Czech people in general and about certain Czech authorities. It finds nothing to warrant the use of such a language. On the other hand, the Court takes into consideration that such expressions are of rare occurrence in the applicant’s voluminous submissions and that they have not recurred since the Section Registrar’s letter of 30 November 2001 in which the applicant was advised of the possible consequences of his continued use of insulting language.
Considering all circumstances of the case, the Court does not find it appropriate to declare the application inadmissible as being abusive within the meaning of Article 35 § 3 of the Convention.
Alleged violation of the applicant’s right to file an individual application
2. The applicant complains that the Czech authorities hindered him in the effective exercise of his right of petition to the Court, alleging that he was not allowed to make telephone calls and send urgent telegrams to the Court’s Registry; that he was not provided with adequate facilities for the preparation of his application; that his belongings, including his documents, were removed on several occasions and returned in disorder and poor shape; that several letters sent by the Court’s Registry were opened and that he was questioned about his complaints to the Court by the prison authorities. He invokes Article 34 of the Convention which provides as follows:
“The Court may receive applications from any person, non-governmental 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 the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
The Government deny the applicant’s allegations that letters sent to him by the Court’s Registry were opened and read by the prison officers. They argue that a prisoner’s correspondence with the Court has been exempt from any control in accordance with section 17(3) of the Execution of Prison Sentences Act of 1999, and that such correspondence has been always handed to the applicant without delay.
The Government further submit that the telegrams which the applicant wanted to send to the Registry of the Court were not dispatched as the applicant either did not have sufficient means to pay for them or because his account had been blocked due to his transfer to another prison. They explain that the prison administration provides indigent prisoners, at their request, with the postage for ordinary mail addressed to their lawyers, national authorities and international authorities charged with the protection of human rights. However, the administration is not obliged to bear the costs of a prisoner’s telephone calls or telegrams. The Government further point out that the applicant was in no way hindered in contacting the Court by ordinary mail.
Finally, the Government contend that the applicant has been able to use his documents with the exception of those periods when he underwent disciplinary punishment in a closed prison wing. They point out that the applicant drafted and filed with the Court a considerable number of applications on behalf of his co-prisoners and conclude that he has been provided with adequate facilities for availing himself of his rights under Article 34 of the Convention.
The applicant contests the Government’s submissions and maintains his Article 34 claim.
The Court recalls that Article 34 of the Convention imposes an obligation on a Contracting State not to hinder the right of the individual effectively to present and pursue a complaint with the Court. While the obligation imposed is of a procedural nature distinguishable from the substantive rights set out in the Convention and Protocols, it flows from the very essence of this procedural right that it is open to individuals to complain of alleged infringements of it in Convention proceedings.
It is of the utmost importance for the effective operation of the system of individual application instituted by Article 34 that applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation, but also other improper indirect acts or contacts designed to dissuade or discourage applicants from using a Convention remedy. The issue of whether or not contacts between the authorities and an applicant amount to unacceptable practices from the standpoint of Article 34 must be determined in the light of the particular circumstances of the case. In the context of the questioning of applicants about their applications under the Convention by authorities exercising a domestic investigative function, this will depend on whether the procedures adopted have involved a form of illicit and unacceptable pressure which may be regarded as hindering the exercise of the right of individual application (see, e.g. the Aydin v. Turkey judgment of 25 September 1997, Reports of Judgments and Decisions 1997-VI, pp. 1899-1990, §§ 115-117; Salman v. Turkey [GC], 21986/93, § 130 with further references, ECHR 2000-VIII).
The Court notes that the prison officers asked the applicant, on several occasions, to specify his complaints to the Court in order to clarify matters. Such requests were apparently made following the Court’s decision to communicate the applicant’s complaints to the respondent Government. The prison officers questioning the applicant referred to Regulation no. 150/1958 on Dealing with Complaints, Submissions and Petitions. The applicant refused to comment, explaining that his complaints concerned the prison administration and that it was therefore for the Government to submit their reply to the Court. Records were drawn up of each interview with the applicant pursuant to the Regulations, and most of them were signed by him. They were submitted to the Court by the respondent Government.
The Court shares the applicant’s view that it was in principle inappropriate for the prison administration to question him about the complaints which he made to the Court and which mainly concerned the treatment to which he had been allegedly subjected by prison staff. Nevertheless, the Court finds no indication that the procedures adopted, which apparently pursued the aim of clarifying the facts of the applicant’s case, involved any form of illicit or unacceptable pressure which may be regarded as having hindered the applicant in the exercise of the right of individual application.
As to the applicant’s complaints that he was not allowed to send telegrams or make telephone calls to the Court’s Registry, and that letters sent to him by the latter were opened on several occasions, the Court considers that such complaints fall to be examined under Article 8 of the Convention rather than under Article 34. In particular, the voluminous correspondence which the applicant sent to the Court confirms that he was able to submit all his complaints to the Court by ordinary mail, and there is no indication that the correspondence between the Court and the applicant was unduly delayed or tampered with.
The Court has also examined the applicant’s remaining complaints under Article 34 and finds that there is an insufficient factual basis to enable it to conclude that the authorities of the respondent State have intimidated or threatened the applicant in circumstances calculated to induce him to withdraw or modify his complaint or otherwise interfere with the exercise of his right of individual petition.
Finally, the Court notes that the applicant was granted free legal aid under the legal aid scheme funded by the Council of Europe, and that the Czech Bar Association recommended a lawyer who was willing to represent the applicant in the proceedings before the Court following his failure to appoint a lawyer. However, the applicant declined the lawyer’s assistance for reasons which the Court considers groundless. Accordingly, he bears full responsibility for any alleged inadequacies in the presentation of his case to the Court.
In view of the above facts and considerations, the Court finds that the alleged violation of Article 34 of the Convention has not been established.
Alleged violations of the applicant’s substantive Convention rights by the Czech authorities
3. The applicant alleges, with reference to the above facts, that the Czech authorities violated his rights under Articles 3, 5, 6, 8, 9, 13, 14 and 18 of the Convention as well as under Articles 1 and 2 of Protocol No. 1 and under Article 4 of Protocol No. 7.
The Government contend that the applicant failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. They maintain, in particular, that the applicant did not, after having exhausted other available remedies, file a constitutional appeal in accordance with the formal requirements, relying on his fundamental rights and freedoms, the violation of which he now alleges before the Court.
The applicant submits that he could not lodge a constitutional appeal in due and proper form as he was not provided with appropriate legal assistance. He submits, in particular, that one of the lawyers assigned to him expressly stated that the State delayed paying fees. Moreover, the applicant had not trusted Mr J.K. as he had allegedly failed to defend the applicant’s interests properly.
The Court recalls that the purpose of the requirement to exhaust domestic remedies laid down in Article 35 § 1 of the Convention is to afford Contracting States an opportunity to prevent or rectify the alleged violation before it is submitted to the Convention institutions. Consequently, States do not have to answer for their acts before an international body until they have had an opportunity to put matters right through their own legal systems. The rule is based on the assumption, reflected in Article 13 of the Convention – with which it has a close affinity - that an effective remedy is available in the domestic system. In this respect the Convention’s protection machinery is subsidiary to the safeguarding of human rights within the national systems. Thus the complaint made to the Court must first have been put – at least in substance – to the appropriate domestic body, in compliance with the formal requirements prescribed in the domestic law (see Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V).
The Court notes that the Convention forms an integral part of the Czech legal system, where it takes precedence over domestic law, pursuant to Article 10 of the Constitution. The provisions of the Convention which set out substantive rights and freedoms are directly applicable. It was therefore open to the applicant to rely on those provisions before the Czech authorities, including the Constitutional Court, and to complain of their violation in his case. As to the question of the effectiveness of a constitutional appeal in particular, the Court is satisfied that, in the light of section 82 of the Constitutional Court Act, this remedy could have afforded redress for the applicant’s complaints. It cannot therefore be deemed ineffective.
The Court observes that the applicant addressed himself to the Constitutional Court with a request for information about the constitutional provisions on 8 and 23 March 1998. In the absence of any specific allegations about a violation of his constitutional rights the Constitutional Court informed the applicant about the conditions for lodging a constitutional appeal.
On 15 and 22 February 1999 the applicant complained to the Constitutional Court about a violation of his right to a fair hearing in the criminal proceedings against him. The Constitutional Court asked the applicant to appoint a lawyer within sixty days. Upon the applicant’s request, the Czech Bar Association assigned him a lawyer. That assignment was subsequently revoked when it was established that another lawyer had already been assigned to the applicant ex officio by the criminal court. Reference was made to the relevant regulations which excluded the designation of a second lawyer by the Bar Association in such a case.
The Court notes that Mr J.K., who was then assigned to the applicant, informed the latter that a valid constitutional complaint about the criminal proceedings could only be brought after the delivery of the final decision by the criminal courts. It has not been shown that the lawyer’s advice was wrong as, under section 75(1) of the Constitutional Court Act, a constitutional appeal is inadmissible if the appellant has previously failed to exhaust all the procedural remedies available in law for the protection of his or her rights.
In any event, there is no evidence before the Court that Mr J.K. or any other lawyer by whom the applicant was assisted in the course of the criminal proceedings refused to represent him before the Constitutional Court. On the basis of the information before it, the Court does not attach decisive importance to the applicant’s objections that he did not trust Mr J.K. and that a different lawyer assigned to him earlier had allegedly stated that the State delayed paying his fees.
The Court further notes that the applicant has not shown that he sought to challenge the alleged violations of his Convention rights which had occurred in the course of his detention on remand before the Constitutional Court, notwithstanding that during the relevant period he was represented by several lawyers, two of whom had been appointed by him or his relatives.
Finally, as regards the complaints about the alleged violation of the applicant’s substantive rights under the Convention which occurred while he served his prison sentence, the Court observes that the applicant did not seek redress, after having exhausted other available remedies, before the Constitutional Court.
As to the applicant’s allegation that he was not in a position to appoint a lawyer to represent him before the Constitutional Court while serving his sentence, the Court notes that the applicant could have asked the Czech Bar Association to appoint a lawyer for him (section 18(2) of the Legal Profession Act) if he could not instruct a lawyer directly himself. In the Court’s view, the applicant’s argument according to which he was not obliged to use such a remedy as he had lost confidence in the Bar Association and its members is not supported by facts which would render it objectively justified. In view of the above, the Court finds no specific reasons absolving the applicant from the obligation to exhaust this domestic remedy.
It follows that the applicant has not, as required by Article 35 § 1 of the Convention, exhausted the domestic remedies in respect of this part of the application, which must therefore be rejected pursuant to Article 35 § 4 of the Convention.
Alleged violations of the applicant’s rights by the German authorities
4. The applicant complains that the German authorities intend to prosecute him for the same offences of which he was convicted in the Czech Republic. He alleges a violation of Article 4 § 1 of Protocol No. 7 which provides as follows:
“No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”
The Court recalls that Article 4 § 1 of Protocol No. 7 does not guarantee respect for the principle of ne bis in idem where a person has been or will be tried or punished by the courts of different States (see, e.g., Amrollahi v. Denmark (dec.), no. 56811/00, 28 June 2001).
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
5. Under Article 8 of the Convention the applicant complains that his letters to Mr W.F. were monitored by the prison administration in Saarbrücken where Mr W.F. was detained.
The Court notes that the applicant has not shown that he sought redress in this respect, after having used other available remedies, before the Federal Constitutional Court by means of a constitutional complaint.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
6. The applicant also complains that by their co-operation with the Czech authorities, and by their attitude in respect of the applicant’s prosecution in the Czech Republic, the German authorities violated his rights under Article 5 §§ 1, 2, 4 and 5, as well as Articles 6 and 14 of the Convention.
Even assuming that the applicant has exhausted domestic remedies, the Court finds that these complaints are wholly unsubstantiated and do not disclose any appearance of a violation of the applicant’s rights under the Convention.
It follows that these complaints are manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
S. DolléJ.-P. Costa
RegistrarPresident
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