# أحكام المحاكم الأجنبية Decisions of Foreign Courts > أحكام المحكمة الأوروبية لحقوق الإنسان > Decisions of The European Court of Human Rights >  X. v. THE FEDERAL REPUBLIC OF GERMANY - 2300/64 [1967] ECHR 9 (10 February 1967)

## هيثم الفقى

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X. v. THE FEDERAL REPUBLIC OF GERMANY - 2300/64 [1967] ECHR 9 (10 February 1967) 
THE FACTSWhereas the facts of the case as presented by the Applicant may besummarised as follows:The Applicant is a German citizen, born in 1923 and at present detainedin prison at Bruchsal.It appears that on .. November, 1958 he was convicted by the RegionalCourt (Landgericht) of Stuttgart on numerous charges of aggravatedtheft and attempted aggravated theft and sentenced to 61/2 years' penalservitude (Zuchthaus) and subsequent preventive detention(Sicherungsverwahrung).In his original Application as well as in many subsequent letters, hecomplains of various measures taken against him by the prisonauthorities during his detention at Bruchsal, and he considers that theGerman authorities have committed perversion of justice (Rechtsbeugung)by constantly rejecting his complaints and appeals regarding themeasures taken against him in prison.His various complaints may be summarised as follows:1. Detention in a "silence division" (Schweigeabteilung)The Applicant states that from .. November, 1958 he had to serve hissentence in a so-called "silence-division" (Schweigeabteilung) at theprison of Bruchsal. In such a division, prisoners are not allowed totalk to their fellow-prisoners or to attend cinema performances orsimilar entertainments. When in the prison yard, such prisoners are tobe kept at a distance of at least 10 metres from other prisoners.The Applicant states that he had to serve his sentence in such adivision for almost 6 years. From .. September, 1964, however, he wasallowed to serve his sentence under a less severe prison regime.He maintains that detention in a "silence division" has necessarilyfatal effects on any person's physical and mental state. In particular,this is so when a prisoner is kept in such a division and consequentlyforbidden to speak to other persons for a long period and in his owncase such prohibition was enforced for six years. He submits that theestablishment of the divisions concerned is not based on any law, butis a measure taken by the Bruchsal Prison Director on his owninitiative in order to aggravate the sentences imposed by the courts.In respect of his detention in a "silence division", the Applicantbrought a criminal charge (Strafanzeige) against the prisonadministration. This charge was rejected on .. June, 1964 by the Officeof the Public Prosecutor at the Regional Court (Staatsanwaltschaft beidem Landgericht) of Karlsruhe and on .. September, 1964 by the SeniorPublic Prosecutor at the Court of Appeal (Generalstaatsanwalt bei demOberlandesgericht) of Karlsruhe. In regard to that decision, he lodgedan application for a judicial decision (Antrag auf gerichtlicheEntscheidung) with the Court of Appeal (Oberlandesgericht) of Karlsruheand this application was apparently also unsuccessful.In August, 1964, he lodged a constitutional appeal(Verfassungsbeschwerde) but, by letter of .. September, 1964 from theFederal Constitutional Court (Bundesverfassungsgericht), he wasinformed that his appeal did not appear to be admissible since he hadnot exhausted all other remedies. It was indicated to him that heshould first have availed himself of the remedies laid down in theService and Prison Rules (Dienst- und Vollzugsordnung) and that,finally, he could have lodged an application for a judicial decisionaccording to Article 23 of the Introductory Act to the Judicature Act(Einf&Atilde;¼hrungsgesetz zum Gerichtsverfassungsgesetz). The Applicant againwrote to the Federal Constitutional Court and it appears that hiscomplaint was registered as a constitutional appeal (as to the fate ofthat appeal, see below under "Submissions of the Parties").It seems that the Applicant also complained to the Ministry of Justicebut he states that the Ministry did not give him any final reply,thereby, in his opinion, preventing him from exhausting the domesticremedies.The Applicant states that as a result of his detention in a "silencedivision" he contracted a stomach ulcer and he also points out thatduring that detention he was exposed to all sorts of affronts by theprison officers.He alleges violations of Articles 2 and 3 of the Convention.2. Interference with right of correspondence(a) On .. November, 1958, the Applicant received permission tocorrespond regularly (Regelbriefverkehr) with a certain Miss A. W whomhe intended to marry and who was the mother of his two illegitimatechildren. He did not wish to correspond with his wife as they were nolonger living together and he apparently intended to obtain a divorcefrom her. On one occasion, however, his wife wrote to him enclosing ashort letter from his legitimate daughter. He then asked for specialpermission to send a letter in reply to his daughter under the addressof his wife. As a result, the prison authorities withdrew, on ..December, 1959, the permission for him to correspond with Miss W. On.. February, 1960, the prison authorities seized a letter written on.. January, 1960 by Miss W to the Applicant. On .. April, 1963, aftermore than three years' interruption of his correspondence with Miss W,the Applicant was again allowed to correspond with her but only oncondition that he did not write to his wife.The Applicant states that as a result of the long interruption of hiscorrespondence with Miss W difficulties and misunderstandings arosebetween them, and Miss W even married another man from whom, however,she subsequently became divorced.After lodging a hierarchical appeal (Dienstaufsichtsbeschwerde) whichwas rejected on .. May, 1963 by the Ministry of Justice inBaden-W&Atilde;¼rttemberg, the Applicant instituted proceedings regarding theinterference with his correspondence with the Administrative Court(Verwaltungsgericht) of Karlsruhe. The Administrative Court did notconsider itself to be competent to deal with the case but transferredit, on .. January, 1964, to the Court of Appeal of Karlsruhe. On ..July, 1964, the Court of Appeal, which considered the Applicant'spetition as an application lodged under Article 23 of the IntroductoryAct to the Judicature Act, declared it inadmissible, partly becausesome of the decisions complained of had been given before Article 23of the said Act had entered into force, and partly because theApplicant had not exhausted his remedies according to the ExecutionOrdinance (Strafvollzugsordnung).The Applicant alleges a violation of Article 8 of the Convention. Hestates that, in fact, the interference with his correspondence was anact of revenge for his refusal to participate in the divine servicesin prison and to accept Christmas gifts which were being distributedby the Prison Chaplain, and he therefore also alleges a violation ofArticle 8 of the Convention.(b) The Applicant also complains that many letters which he had writtenin prison had not been forwarded because they were considered to bedefamatory or offensive. He mentions, in particular, letters to hislawyer, Professor P, in East Berlin, and to his fianc&Atilde;©e who is livingin the Soviet Occupied Zone of Germany. He has submitted extracts oftwo such letters to his fianc&Atilde;©e which mainly deal with the conditionsin German prisons in general and with certain particular cases ofill-treatment in a Hamburg prison.The Applicant maintains that some of the letters seized were formalcomplaints and that, therefore, he was prevented from exhaustingdomestic remedies in regard to some allegations. He provides no furtherdetails on this point.He alleges violations of Articles 8 and 10 of the Convention.3. Miscellaneous complaints(a) Certain complaints relate to the medical treatment which theApplicant has received during his detention.He states that as he suffered from a stomach ulcer he was sent tohospital where the competent doctor ordered that he should follow aspecial diet ("Milchbreikost"). After he had been discharged from thehospital, the Prison Doctor, paying no attention to his state ofhealth, permitted his return to the "silence division" although he wasin fact physically unfit for such severe detention. In the "silencedivision", the Prison Doctor only gave him special diet once a day,although the other doctor who had treated him at the hospital hadordered that such diet should be given twice a day.The Applicant also complains that the Prison Doctor gave him a certaininjection without first consulting a surgeon.In regard to the action of the Prison Doctor, the Applicant complainedto the Medical Association (&Atilde;„rztekammer) and he also lodged ahierarchical appeal (Dienstaufsichtsbeschwerde) with the Ministry ofJustice, but without success. He also brought a criminal charge againstthe Doctor, but the Public Prosecutor refused to prosecute.He alleges a violation of Article 2 of the Convention.(b) On .. May, 1965, the Regional Court (Landgericht) of Karlsruhe helda hearing in regard to the divorce proceedings pending between theApplicant and his wife.The Applicant was forced to appear at this hearing and before appearingat the court he was ill-treated and brutally handcuffed by policeofficers, so that one hand was injured, and he was trodden upon. Inregard to his hand injury, the Doctor did not give him any treatment.At the hearing, his lawyer protested against this violent treatment towhich the Applicant had been subjected but the President merely askedhis lawyer to keep calm.The Applicant complained without success of the brutal action of thepolice officers and the failure of the Doctor to give him adequatetreatment. The Ministry of Justice rejected his complaint on .. May,1965. His complaint to the Local Medical Association(Bezirks&Atilde;¤rztekammer) of North-Baden was transmitted to the Ministry ofJustice which, on .. June, 1965, rejected the complaint by referringto its previous decision of .. May, 1965.The Applicant also submitted an application for a judicial decision(Antrag auf gerichtliche Entscheidung) to the Court of Appeal inStuttgart which rejected this application on .. August, 1965.The Applicant finally brought criminal charges in respect of the sameincident, but the Public Prosecutor at the Regional Court decided on.. August, 1965 not to take any action, and this decision was upheldon .. September, 1965 by the Senior Public Prosecutor at the Court ofAppeal. He asked for legal aid in order to be able to bring the casebefore the Court of Appeal, but on .. November, 1965, legal aid wasrefused.(c) In respect of the alleged ill-treatment of an Algerian prisoner,the Applicant complained to the Federal Parliament (Bundestag). Thiscomplaint was transmitted to the Parliament (Landtag) ofBaden-W&Atilde;¼rttemberg which dismissed it on .. January, 1964.He also submitted a criminal charge against the prison officerallegedly responsible for this ill-treatment, but on .. September,1964, the Public Prosecutor refused to institute criminal proceedings.(d) The Applicant also brought a criminal charge against a prisonofficer who had allegedly made certain antisemit statements. Althoughhis allegations were supported by another prisoner, the PublicProsecutor did not find that there were sufficient reasons to institutecriminal proceedings, and this decision given on .. January, 1964 wasupheld on .. March, 1964 by the Senior Public Prosecutor.(e) From the file, it appears that the Applicant also lodged a numberof other complaints in regard to various prison officers who hadallegedly insulted him or had otherwise behaved improperly. He alsocomplained that a letter sent to him by his lawyer had been opened bythe prison authorities and he complained to the Bar Association aboutthe way his lawyer had assisted him. Other complaints concerneddisciplinary punishments imposed on him and on one occasion he allegedthat he had not enough writing paper at his disposal. None of thesecomplaints were apparently successful, and it is not clear to whatextent he actually intends to raise these complaints before theCommission.Proceedings before the CommissionWhereas the proceedings before the Commission may be summarised asfollows:By letters of 11th and 27th September and 14th October, 1965, theApplicant informed the Commission that he wished to withdraw hisApplication. Before the Commission had taken any decision in regard tothis withdrawal, the Applicant indicated, however, by letter of 4thDecember, 1965, that he again wished the Commission to examine hiscase.On 6th October, 1966, the Commission decided :Frown: a) to give notice to the Federal Government, pursuant to Rule 45,paragraph (3) (b), of the Commission's Rules of Procedure, of theApplication in so far as it concerned the Applicant's complaint as tohis detention in a "silence division" and to invite the Government tosubmit its observations on the admissibility of that part of theApplication;(b) to adjourn its examination of the remaining parts of theApplication.The Government submitted its observations on 16th December, 1966 andthe Applicant's reply is dated 28th December, 1966 and was received bythe Commission on 4th January, 1967.In view of the contents of the Applicant's reply, the Governmentsubmitted, on 20th January, 1967, a further pleading which wascommunicated to the Applicant for his information.Submissions of the Parties[/align]

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## هيثم الفقى

[align=left]Whereas the submissions of the Parties may be summarised as follows:

The Federal Government referred to a statement which it had received
from the Ministry of Justice of Baden-W&#195;¼rttemberg in regard to the
Applicant's complaint. The Ministry had stated that this complaint
should be so interpreted as to concern primarily the fact that the
Applicant had not been allowed to join other prisoners in taking walks
in the prison courtyard as provided for in the Service and Prison
Files. In fact, the Applicant had been prohibited from mixing with his
fellow-prisoners in these walks in the prison courtyard and he had to
do his open-air exercise in the so-called "Normalhof" ("ordinary
yard"). The Government quoted the following statement by the Ministry
of Justice of Baden-W&#195;¼rttemberg:

"While the prisoners admitted to the more informal walks in the prison
courtyard are allowed to talk to each other, those spending their
open-air exercise time in the so-called "Normalhof" are not allowed any
conversation with their fellow-prisoners during that time."

The Government further submitted that the Applicant's complaint was
inadmissible, since the domestic remedies had not been exhausted. In
reply to an appeal lodged by the Applicant in August, 1964, the Federal
Constitutional Court had informed him, on .. September, 1964, that,
before lodging a constitutional appeal, he should exhaust all other
remedies and that, in particular, he should lodge an application for
a judicial decision according to Article 23 of the Introductory Act to
the Judicature Act. Nevertheless, the Applicant had again written to
the Federal Constitutional Court which, on .. October, 1964, had
formally rejected his constitutional appeal as being inadmissible. The
Applicant had not even after this decision lodged an application for
a judicial decision according to Article 23 of the Introductory Act to
the Judicature Act, and consequently he had not exhausted the legal
remedies at his disposal.

The Applicant replied that his complaint concerned the illegal silence
division in the Bruchsal prison. While the Penal Code and the Service
and Prison Rules contained provisions regarding the use of solitary
confinement, there were no corresponding provisions regarding the
system of silence division and this system was therefore illegal.

In regard to the legal remedies, the Applicant confirmed that, in reply
to his complaint of August, 1964, the Federal Constitutional Court had
informed him that he should first lodge an application with the
competent Court of Appeal. Nevertheless, he had immediately submitted
a new complaint to the Federal Constitutional Court and had been
informed that this complaint had been registered as a constitutional
appeal. The Applicant maintained, however, that the decision of ..
October, 1964 referred to by the Government had not concerned the
present complaint but that the reference number of the case had been
confused with the number of another appeal.

The Government contested that the numbers of two appeals had been
confused and undertook to submit the relevant file of the Federal
Constitutional Court if the Commission should require further
information on this point.

THE LAW

Whereas, in regard to the Applicant's complaint as to his detention in
a "silence division" (paragraph 1 of the statement of facts), it is to
be observed that, under 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;

Whereas the Government has submitted that the Applicant had not lodged
an application for a judicial decision (Antrag auf gerichtliche
Entscheidung) according to Article 23 of the Introductory Act to the
Judicature Act (Einf&#195;¼hrungsgesetz zum Gerichtsverfassungsgesetz);
whereas the Applicant has not contested this statement by the
Government; whereas, therefore, it must be assumed that the Applicant
did not use this particular remedy;

Whereas it also appears that the Federal Constitutional Court had
informed the Applicant, by letter of .. September, 1964, that he should
make use of this remedy before lodging a constitutional appeal;

Whereas, consequently, the Applicant has not exhausted the domestic
remedies within the meaning of Article 26 (Art. 26) of the Convention,
in particular, as the failure to lodge an application for a judicial
decision also excluded him from having his allegations examined by the
Federal Constitutional Court;

Whereas, in these circumstances, it is superfluous to examine the
contents of the Federal Constitutional Court's decision of .. October,
1964 in regard to which the Parties have made contradictory statements;

Whereas, in regard to the Applicant's complaint as to interference with
his correspondence with a certain A.W (paragraph 2 (a) of the statement
of facts), it appears that the Applicant lodged a complaint which was
treated as an application for a judicial decision according to Article
23 of the Introductory Act to the Judicature Act; whereas the competent
Court of Appeal decided that this application was inadmissible since
some of the decisions complained of had been given before 1st April,
1960, the day on which Article 23 of the said Act had entered into
force and, further, in regard to subsequent decisions, the Applicant
had not exhausted the remedies which were available to him under the
Execution Ordinance (Strafvollzugsordnung);

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, and within a period of six months from the date of the
final domestic decision;

Whereas, as regards the decisions given before 1st April, 1960 in
respect of the Applicant's correspondence with A.W, the Applicant
failed to observe the six months' time-limit, since he did not submit
his case to the Commission until 29th July, 1964, that is more than six
months after the dates of the decisions complained of;

Whereas, as regards the decisions given after 1st April, 1960 in
respect of that correspondence, the Applicant failed to exhaust the
domestic remedies at his disposal; whereas, in particular, he did not
take action according to the Execution Ordinance; whereas his failure
to take such action also prevented him from having his complaint
examined by the Court of Appeal;

Whereas it follows that in regard to the Applicant's complaint as to
the interference with his correspondence with A.W, he did not comply
with the conditions laid down in Article 26 (Art. 26) of the
Convention;

Whereas, in so far as the Applicant complains of the ill-treatment of
an Algerian prisoner (paragraph 3 (c) of the statement of facts), it
is to be observed that, according to Article 25 (Art. 25) of the
Convention, the Commission may only receive petitions from a person,
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 this Convention";

Whereas, in regard to the present complaint, the Applicant does not
allege that he is, directly or indirectly, the victim of the
ill-treatment concerned;

Whereas it follows that this part of the Application is incompatible
with Article 25 (Art. 25) of the Convention and is to be rejected
according to Article 27, paragraph (2) (Art. 27-2), of the Convention;

Whereas, in so far as the Applicant's complaints are directed against
his lawyer (paragraph 3 (e) of the statement of facts), it appears from
Article 25 (Art. 25) of the Convention that the Commission can admit
an application from an individual only if that individual claims to be
the victim of a violation of the Convention "by one of the High
Contracting Parties"; whereas, on the other hand, the Commission has
no competence ratione personae to admit applications directed against
private individuals;

Whereas it follows that this part of the Application which is directed
against the Applicant's lawyer is incompatible with the Convention
within the meaning of Article 27, paragraph (2) (Art. 27-2), of the
Convention (see Application No. 1599/62, Yearbook of the European
Convention on Human Rights, Volume 6, page 356);

Whereas, in regard to the remainder of the Application, including the
Applicant's complaints as to interference with his correspondence with
persons other than A.W, inadequate medical treatment, ill-treatment of
the Applicant and antisemit statements by a prison officer (paragraphs
2 (b), 3 (a), (b), (d) and (e) of the statement of facts), an
examination of the case as it has been submitted does not disclose any
appearance of a violation of the rights and freedoms set forth in the
Convention and, particularly in Articles 3 and 8 (Art. 3, 8);

Whereas it follows that these parts of the Application are manifestly
ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-
2), of the Convention.

Now therefore the Commission declares this Application INADMISSIBLE.[/align]

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