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)