THE FACTS
Whereas the facts presented by the Applicant, excluding those which
relate to the complaints already rejected by the Commission, may be
summarised as follows:
The Applicant is a German citizen, born in 1930 and at present detained
in the Tegel prison in Berlin. He is represented before the Commission
by Mr. Hasso Fügart, a lawyer practising in Berlin.
A previous Application (No. 2004/63) lodged by the same Applicant was
declared inadmissible by decisions of 1st June, 1965 and 24th May, 1966
(2).
The Applicant now alleges that he was ill-treated by prison officers
in the Tegel prison on 4th September, 1965. He states that on that day,
when on his way back from the prison hospital, he had a dispute with
a prison officer named H who finally attacked him. He received blows
on his ribs and was choked from behind. Another prison officer, K,
twisted his left arm and he was dragged to a place where a third
officer named M, assisted the other two in assaulting him. He was then
taken to an isolation cell where later he tried unsuccessfully to
explain the situation to a prison officer, O. After O had left the
cell, H entered and threatened him ("Du hast Glück, dass wir nicht
allein sind, sonst würde ich Dich Schwein schon klein kriegen").
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(1) A partial decision by the Commission on 16th December, 1965,
declaring part of the Application inadmissible has not been published.
(2) See Collection of Decisions, Volume 20, page 40.
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After some time, Kornmann was ordered to leave the cell and was taken
to another cell ("Spülzelle") where he was told to undress. He asked
to be allowed to speak to one of the superiors in the prison but was
not allowed to do so. H. wished to take off Kornmann's clothes by force
after Kornmann had asked for the reason for the treatment to which he
was being subjected. Someone then proposed to take Kornmann to the
cellar of House I ("da werden wir mit ihm schon fertig"). His arms were
again twisted and he was pushed and taken to this cellar where he was
forced to undress and H again threatened him. Kornmann again stated
that he wished to see one of the superiors but he was knocked down,
kicked, pushed about and pulled by his hair and one of the officers
asked for a truncheon; his chest and back were trodden on by prison
officers and with the use of much brutality a metal band was tied round
his body.
He was then handcuffed so tightly that his hands were swollen as the
circulation of his blood was hindered. After about one hour another
prison officer relieved him of his fetters but he was not allowed to
see the Inspector or the prison doctor and, in his submission, this was
apparently refused because he had still marks of ill-treatment.
Kornmann stated that, when writing his letter (on 4th September, 1965),
he still had pains and difficulty in breathing as results of this
ill-treatment in the cellar and of the fact that the prison officers
had trodden on his stomach and back.
Proceedings before the Commission
Whereas the proceedings before the Commission may be summarised as
follows:
The present Application was lodged on 4th September, 1965, and was
registered on 10th December, 1965. The Application concerned not only
the alleged incident of ill-treatment but also a number of other
allegations.
On 16th December, 1965, the Commission decided to declare the
Application inadmissible except in regard to the alleged ill-treatment.
The Commission further decided that, in respect of this allegation, the
Parties should be asked to make oral explanations of the admissibility
at the hearing which was to be held in regard to Application No.
2004/63, also lodged by Kornmann.
The oral hearing, for which the Applicant was granted legal aid by the
Commission, was held on 11th and 12th February, 1966. Following the
hearing, the Commission decided to adjourn its decision on
admissibility and, in the meanwhile, to ask the Government to provide
further information on certain points and to submit certain documents.
On 18th April, 1966, the Government submitted its further written
observations and the Applicant's lawyer replied on 6th May, 1966. The
Government also submitted additional pleadings on 9th and 20th May,
1966.
On 24th May, 1966, the Commission decided
(a) not to take notice of the Government's pleading of 20th May, 1966,
as it had arrived after the pleadings had been closed;
(b) to adjourn its decision on the admissibility of the Application
pending the outcome of certain proceedings in Berlin.
On 17th June, 1966, the President of the Commission decided that a
passage of the Government's pleading of 20th May, 1966 should be
communicated to the Applicant's lawyer and a reply was submitted by him
on 6th July, 1966.
After being informed by the Applicant's lawyer about the progress of
the proceedings in Berlin, the Commission decided, on 4th October,
1966, to invite the Government to submit further observations on
certain aspects of the case.
The Government submitted a pleading on 8th November, 1966 and the
Applicant's lawyer did not submit any reply within the time-limit fixed
by the Commission.
Applications for adjournment on different grounds were submitted by
both Parties and were rejected by the Commission on 4th October and
13th December, 1966.
Submissions of the Parties
Whereas the submissions of the Parties may be summarised as follows:
1. As to the question of the Applicant's withdrawal of his Application
The Government submitted on 4th February, 1966 a copy of a document
stating as follows:
"Berlin 27, 8th October, 1965, Seidelstrasse 39
Declaration
I consider my petition of 4th September, 1965 to the Council of Europe,
Strasbourg, as settled and hereby withdraw it.
Heinz Kornmann."
The Government further explained that this declaration had, by mistake,
been filed with the Berlin authorities instead of being at once
forwarded to the Commission. In the Government's opinion, this document
seemed to show that the Applicant had not been clear himself as to the
effect of his Application and had not attached any great importance to
it. On the other hand, the declaration of withdrawal was apparently
also of interest in regard to the question whether the Applicant had
exhausted domestic remedies (this was stated at an early stage of the
proceedings, when the Applicant had not yet availed himself of the
"prosecution enforcement procedure" - Anklageerzwingungsverfahren -
provided for in Article 172 of the Code of Criminal Procedure).
According to the Government, the declaration of withdrawal might also
indicate that the Applicant himself had doubts as to whether the
allegations made in his Application were well-founded and,
consequently, the declaration of withdrawal might also have some
relevance in the examination of the question as to whether the
Application was manifestly ill-founded.
The Applicant's lawyer stated that it was not clear whether the
declaration referred to by the Government concerned the incident of 4th
September, 1965. He submitted that the Applicant could hardly have
complained of this ill-treatment by a petition dated 4th September,
1965, being the same day on which he had been severely manhandled,
transferred to a detention cell and punished by seven days' strict
detention. If, however, the declaration of withdrawal was shown to
concern the complaint as to his ill-treatment, the Applicant's lawyer
submitted that it had not been withdrawn of the Applicant's free will.
In any event, the Applicant's own conduct showed that he did not intend
to withdraw his complaint. Moreover, a withdrawal would not prevent the
Commission from examining the case since the Commission's proceedings
were not bound by formal considerations their purpose being to examine
the substance of the alleged facts.
2. As to the question of exhaustion of domestic remedies (Article 26
of the Convention)
The Government submitted that, in German law, the alleged acts by
prison officers would constitute the offence of causing bodily harm in
the exercise of official duties (Körperverletzung im Amt). As this was
a criminal offence, the primary remedy at the Applicant's disposal
would be the lodging of a criminal charge (Strafanzeige) with the
competent Public Prosecutor (Staatsanwalt) and, if the Public
Prosecutor decided to take no action, he could appeal to the Senior
Public Prosecutor (Generalstaatsanwalt).
If the Senior Public Prosecutor also decided not to institute criminal
proceedings, he could avail himself of the "prosecution enforcement
procedure" (Anklageerzwingungsverfahren) provided for in Article 172
of the Code of Criminal Procedure (Strafprozessordnung). This procedure
implied that an application for a judicial decision could be lodged
with the competent Court of Appeal which, in the case of Berlin, was
the Kammergericht.
The Government first submitted that the present Application was
inadmissible as the Applicant had not exhausted these remedies. It
pointed out that the Applicant had lodged a criminal charge on 11th
September, 1965 but that he had withdrawn this charge on 5th October,
1965 and that, in view of his withdrawal, the Public Prosecutor at the
Landgericht had decided to discontinue the proceedings.
However, while the Application was pending before the Commission, the
Public Prosecutor decided on 4th April, 1966, to re-open the
investigation ex officio. Following this new investigation, the Public
Prosecutor again decided, on 15th April, 1966, to discontinue the
proceedings.
The Applicant's appeal from this decision was rejected on 18th July,
1966 by the Senior Public Prosecutor at the Kammergericht. The
Applicant then lodged an application for a judicial decision by the
Kammergericht in accordance with Article 172 of the Code of Criminal
Procedure. This application was rejected on 29th August, 1966.
The Government has not submitted that the Applicant was also obliged
to exhaust further remedies in order to comply with Article 26 of the
Convention. It is true that the Government referred to two further
remedies, namely
(a) an application for a judicial decision by the Kammergericht in
accordance with Article 23 of the Introductory Act to the Judicature
Act (Einführungsgesetz zum Gerichtsverfassungsgesetz) which provides
for an appeal in regard to decisions and measures taken by the prison
authorities;
(b) civil proceedings against the Land Berlin in respect of breach of
official duty (Amtspflichtverletzung) by officers of justice, the legal
basis being Article 34 of the Basic Law (Grundgesetz) and certain
provisions of the Civil Code (Bürgerliches Gesetzbuch), in particular,
Article 839.
The Government emphasised, however, that the principal remedy in the
present case was a criminal charge.
The Applicant's lawyer maintained that the Applicant had exhausted the
domestic remedies within the meaning of Article 26 of the Convention.
He submitted that, as the Applicant had pursued the proceedings
regarding the criminal charge up to the Kammergericht, he could not be
required also to lodge an application according to Article 23 of the
Introductory Act to the Judicature Act. The lawyer further submitted
that civil proceedings could not be considered to be an effective
remedy in respect of alleged punishable acts unless it had first been
established in criminal proceedings that an offence had been committed.
In particular, the courts would never grant legal aid unless this
condition was satisfied.
3. As to the question whether the Application is manifestly ill-founded
(Article 27, paragraph (2), of the Convention)
The Government did not make any substantial comments on the incident
of 4th September, 1965 itself. It referred, however, to certain
statements made by the prison officers concerned and submitted certain
documents, in particular, the file of the Public Prosecutor regarding
his investigation of the Applicant's allegations. The Government also
pointed out, on the basis of the statements of the prison officers,
that the background of the incident was different from what the
Applicant had stated. On this point, the following statement made by
the Government's representative at the oral hearing may be quoted:
"The important point appears to me to be Principal Officer H's
statement that the Applicant was not on his way back from the hospital,
as he said, when this altercation came about. H states here that he had
locked out the prisoners of the section in which Kornmann was for their
recreation period, in other words he had let them out of the section,
which was closed off, and when he looked down into that wing of the
building he saw that Kornmann, whom he had also shut out for the
recreation period, was in front of the infirmary. The report continues:
"If Kornmann says that he was shut out by me to go to the hospital and
not for the recreation period, that is not correct." The Principal
Officer's duty was to watch prisoners in their recreation period
carefully, in particular, to ensure that no prisoner separated himself
from the group, for if that happens there is always the danger of
escape or attempted escape. He asked Kornmann what he was doing in
front of the hospital and told him he had to report to him (H) before
he went there. We read further that H did not bawl at the Applicant at
all, as Kornmann has stated in his petition; it was rather the other
way round. Kornmann is said to have immediately become abusive in reply
to the officer's rebuke and to have made remarks like, "I won't be
ordered about by you. Who do you think you are? I won't put up with
your Nazi concentration camp methods." H then told the Applicant to
come with him. Kornmann did not obey this order. H therefore had to
force him to come with him, and Kornmann resisted. That is how the
struggle came about. This is confirmed in the main by the other
witnesses who, it is true, did not see the beginning."
The Government also submitted that the Applicant was not a person
worthy of credit. Even the manner in which he had conducted his case
before the Commission disclosed a tendency to be querulous and various
statements made by him in his letters to the Commission were mere
invention. One example was that he had frequently referred to his
experiences in a concentration camp, although, in fact, it was certain
that he had never been in such a camp. The Government also referred
agreed in stressing his lack of honesty at the time when he was at
school. It was also submitted that the Applicant had himself asked to
be transferred to a mental home by reason of his mental condition;
further, that the Applicant's wife had declared that she had found a
certificate by a mental institution from which it appeared that in 1954
the Applicant, criminally responsible according to Article 51,
paragraph (1), of the Criminal Code. The Government also indicated that
the Applicant would be examined by a psychiatrist in connection with
criminal proceedings which had been instituted against him in respect
of defamation and false accusations against prison officers.
The Applicant's lawyer adhered to the Applicant's own version of the
incident on 4th September, 1965 and contested that the Applicant's
statements could be disregarded on the ground that he was not worthy
of credit. He pointed out that lately there had been numerous cases of
ill-treatment in German prisons and that therefore the Applicant's
allegations were in no way absurd.
THE LAW
Whereas the Government has submitted a declaration of 8th October, 1965
in which the Applicant states that he withdraws his petition to the
Council of Europe dated 4th September, 1965; whereas the Applicant's
complaint regarding the alleged ill-treatment on 4th September, 1965
was first submitted to the Commission by a letter dated 4th September,
1965;
Whereas, therefore, the Commission is satisfied that the declaration
of withdrawal invoked by the Government concerned the incident of 4th
September, 1965;
Whereas it has not been indicated to the Commission in what
circumstances this declaration was signed by the Applicant; and whereas
there is some reason to doubt that this declaration was sincere since
the Applicant has subsequently made it clear, on many occasions, that
he wished to pursue the proceedings before the Commission;
Whereas, in regard to a declaration of withdrawal of an Application,
the Commission, in its decision to strike out the Application
concerned, has consistently included the following proviso, namely,
that no reasons of a general character affecting the observance of the
Convention necessitated a further examination of the complaint (see
Applications Nos. 2169/64, 2204/64 and 2326/64, Collection of
Decisions, Volume 14, page 82); whereas, in certain cases, the
Commission has found that the Application concerned raised problems
under the Convention which might extend beyond the interests of the
particular Applicant and has decided, on that ground, not to strike out
the Application in spite of the declaration of withdrawal (see
Applications Nos. 2004/63, Collection of Decisions, Volume 20, pages
50 - 51, and 2294/64, Collection of Decisions, Volume 20, pages 99 -
100);
Whereas the Commission finds that the present Application raises such
problems under the Convention and, consequently, considers that there
are sufficient reasons to examine the admissibility of the Application
irrespective of the possible existence of a valid declaration of
withdrawal on the part of the Applicant;
Whereas, accordingly, it is not necessary to examine the precise
circumstances in which the declaration was made by the Applicant or the
further question whether the fact that the Applicant has since made it
clear that he intends to pursue the proceedings could affect the
validity of his previous declaration;
Whereas Article 26 (Art. 26) of the Convention provides that the
Commission may only deal with a matter after all domestic remedies have
been exhausted, according to the generally recognised rules of
international law;
Whereas the respondent Government has submitted that the principal
remedy available to the Applicant was the remedy by means of lodging
a criminal charge (Strafanzeige);
Whereas the Commission observes that the Applicant complains of
ill-treatment by prison officers and that the alleged acts constitute
criminal offenses under German law;
Whereas, therefore, the Commission accepts the Government's submission
that, in order to comply with Article 26 (Art. 26), the Applicant was
obliged to lodge a criminal charge with the competent Public Prosecutor
and, in the case of refusal by the Public Prosecutor to institute
criminal proceedings, to use all remedies available under German law
against such decision by the Public Prosecutor;
Whereas, as regards the implementation of this remedy, it appears that,
on 11th September, 1965, the Applicant lodged a criminal charge which,
however, he subsequently withdrew; whereas the Public Prosecutor first
decided, in view of this withdrawal, to discontinue the proceedings but
subsequently re-opened the investigation ex officio; whereas, however,
the Public Prosecutor decided for the second time, on 15th April, 1966,
to discontinue the proceedings; whereas the Applicant appealed from
this decision but his appeal was rejected on 18th July, 1966 by the
Senior Public Prosecutor; whereas the Applicant also lodged an
application with the Kammergericht according to Article 172 of the Code
of Criminal Procedure and whereas this application was rejected on 29th
August, 1966;
Whereas it follows that the Applicant exhausted these particular
remedies as required by Article 26 (Art. 26) of the Convention;
Whereas the Commission has also examined the question whether the
Applicant was obliged to exhaust any further remedy in order to comply
with Article 26 (Art. 26); whereas the proceedings which might enter
into consideration are, on the one hand, those provided for in Article
23 of the Introductory Act to the Judicature Act (Einführungsgesetz zum
Gerichtsverfassungsgesetz) and, on the other, civil proceedings against
the Land Berlin.
Whereas, in this regard, the Commission observes that the present case
concerns primarily a question of evidence and that the reason why the
Applicant was unsuccessful in lodging a criminal charge was that the
authorities did not find that there was sufficient evidence to support
his allegations; whereas it is clear that the Applicant, if he had
lodged an application according to Article 23 of the Introductory Act
to the Judicature Act or had instituted civil proceedings, would have
been faced with the same problem of proving that he had in fact been
ill-treated; whereas, consequently, his failure to prove his
allegations in connection with his criminal charge creates a
presumption to the effect that neither an application lodged according
to Article 23 of the said Introductory Act nor civil proceedings would
have had any chance of giving the Applicant satisfaction;
Whereas, therefore, these two remedies cannot be considered as
sufficient or effective in the circumstances of the present case and
the Applicant was not obliged to exhaust them in order to comply with
Article 26 (Art. 26) of the Convention;
Whereas the Commission concludes that the conditions laid down in
Article 26 (Art. 26) have been satisfied in the present case;
Whereas the Applicant's allegations give rise to an important question
of a possible violation of Article 3 (Art. 3) of the Convention;
Whereas, however, the full circumstances relating to the incident of
4th September, 1965 are to some extent in dispute and their
determination requires a complete investigation of the case; whereas
it follows that this complaint cannot be regarded as manifestly
ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention and cannot be declared inadmissible;
For these reasons and without in any way prejudging the merits of the
case, the Commission,
Having regard to its partial decision of 16th December, 1965, declares
ADMISSIBLE and accepts the remainder of the Application.