THE FACTS

Whereas the facts presented by the applicant may be summarised as
follows:

The applicant is a German citizen, born in 1941 and at present detained
in prison at B..

The applicant complains that on 20 June 1968 he was beaten by the
prison warden S. when he was detained in an isolation cell
(Arrestzelle).

He states that on 20 June 1968 several prisoners were taken to
isolation cells by eight officers led by Mr. S.. He heard these
prisoners cry for help and admits that he therefore started to shout
loudly in order to protest against, as he believed, the ill-treatment
of his co-detainees.

He was consequently also taken to an isolation cell. In this cell he
had an altercation with Mr. S., whom he reproached for acting like an
SS-man. He alleges that thereupon Mr. S. attacked him, pushed him
brutally against the protective railing of the cell and started to beat
him with his fists, in one of which he held a heavy key. In order to
protect himself, the applicant states that he ran out of the cell into
the corridor of the cellar where he cried loudly for help so that the
other prisoners could at least take notice of the way he was
ill-treated. In the corridor he held fast to a pipe since otherwise,
as he pretends, Mr. S. would have pushed him to the floor and kicked
him. He alleges that although he offered no active resistance, Mr. S.
hit him several times on his neck and shoulders.

He further alleges that after this occurrence he requested to see the
prison doctor, since the beating had caused some cuts (Risse) on his
shoulders, but only a first-aid man (Sanitàˆter) was sent to take care
of him. Allegedly the prison authorities later pretended that they
could not find out who this first-aid man was. The applicant states
that he knows this man by sight, but it does not appear that he
requested the German authorities to be given the possibility to find
him.

The applicant has submitted a handwritten statement dated 1 July 1968,
signed by three co-detainees, called W., F. and K., who declare in lieu
of an oath (eidesstattlich) that on 20 June 1968 they observed from
their isolation cells that Mr. S. beat the applicant with his fists.

The applicant states that in the meantime, F. has been released after
having served his sentence while the two other witnesses were not only
freed from serving a punishment of four and two weeks confinement in
an isolation cell respectively, but they were even favoured in that,
contrary to the prison rules, they were given an interesting
employment. The applicant is of the opinion that this was done in order
to influence these two prisoners not to give evidence before the
Commission corroborating his complaint.

The applicant addressed several complaints to the Office for the
execution of sentences (Justizvollzugsamt) in B., which were all
rejected by the President of this office. The applicant was so informed
by letter of 30 August 1968. With regard to the incident of 20 June
1968 it is stated in this letter that, contrary to his allegation, the
applicant had not complained to the prison director of the alleged
ill-treatment and that the prison officials concerned had strongly
refuted the accusations which the applicant had made against them. It
is further stated in the letter that according to the applicant's own
declaration which was taken down at the prison on 21 June 1968, he had
not been beaten.

The applicant explains that when he made this declaration he only meant
that on his way to the isolation cell he was not beaten.

The applicant repeated his accusation against Mr. S. to the Office of
the Public Prosecutor. By letter of 23 October 1968 from the Attorney
General (Generalstaatsanalt) at the Regional Court (Landgericht) he was
informed that the proceedings had been discontinued (Verfahren
eingestellt), since there was not sufficient evidence to prove that Mr.
S. had committed any criminal offence. The Attorney General points out
that the applicant himself had admitted to having insulted Mr. S. and
to having been in a state of excitement (Erregungszustand) due to an
overactivity of his thyroid gland, while on the other hand Mr. S. had
denied having treated the applicant incorrectly.

Insofar as the applicant alleged that he had been attacked by Mr. S.
in the isolation cell the Attorney General notes that no witnesses were
available to corroborate this allegation. He goes on to state that even
assuming that Mr. S. had pushed the applicant against the protective
railing, this action would have been justified or was at least
excusable in view of the applicant's aggressive conduct, which might
have given the impression that he was prepared to use violence or to
flee from the isolation cell as he in fact did a little later.

As regards the applicant's allegation that Mr. S. had hit him several
times when he was running up and down the corridor in front of the
isolation cell, the Attorney General states that the witnesses heard
in this respect, had given a different account of what had happened in
the corridor. According to the witnesses, Mr. S. had struck him several
blows on his neck and shoulders while he held on to a pipe.

The Attorney General states that although the witnesses had spoken of
blows it might as well be possible that Mr. S. only seized the
applicant several times on his shoulders in order to tear him away from
the pipe. But even if he hit the applicant he was, in the circumstances
justified, since it was his duty as a warder to break the resistance
of the applicant and bring him back to the isolation cell.

By letter of 27 February 1970 the applicant was requested to inform the
Commission's Secretary whether he had lodged an appeal against the
decision of the Attorney General of the Regional Court dated 23 October
1968.

In reply, by letter 2 March 1970, he alleged that he had, on 10
November 1968, addressed a letter to the Attorney General at the Court
of Appeal appealing against the above-mentioned decision but that this
letter did not arrive and, as he later found out, had not been
registered in the prison office controlling the outgoing
correspondence. He stated that when he discovered that his letter had
been lost it was too late to lodge the appeal in time and he assumed
that his earlier letter containing the appeal had been withheld.

The applicant is of the opinion that the Attorney General covers the
prison officer. He alleges a violation of Article 3 of the Convention
and requests the Commission to admit his application.

THE LAW

Whereas, in regard to the applicant's complaint that he was a victim
of a violation of Article 3 (Art. 3) of the Convention in that he was
struck several times by a prison guard, the Commission notes that the
applicant has himself admitted that he was over-excited and insulted
the guard and even ran out of the isolation cell where he was detained;

Whereas the Commission finds that under these circumstances, the force
used by the guard to pull the applicant away from the pipe to which he
was clinging in order to take him back to the isolation cell did not
amount to inhuman treatment within the meaning of Article 3 (Art. 3)
of the Convention; whereas it follows that this part of the application
is manifestly ill-founded within the meaning of Article 27, paragraph
(2) (Art. 27-2), of the Convention;

Whereas, in regard to the applicant's complaint that a letter
containing his appeal against the decision of the Attorney General at
the Regional Court was withheld by the prison authorities, 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; and whereas the applicant failed to complain to the
competent court of the alleged failure of the prison authorities to
forward his letter;

Whereas, therefore, he had not exhausted the remedies available to him
under German law; whereas, moreover, an examination of the case as it
has been submitted, including an examination made ex officio, does not
disclose the existence of any special circumstances which might have
absolved the applicant, according to the generally recognised rules of
international law, from exhausting the domestic remedies at his
disposal; whereas, therefore, the condition as to the exhaustion of
domestic remedies laid down in Articles 26 and 27 (3) (Art. 26, 27-3),
of the Convention has not been complied with by the applicant;

Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE