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"). --------------------------------------------------------------------- (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. --------------------------------------------------------------------- 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.