THE FACTS

The facts of the case, as submitted by the applicant, may be summarised
as follows:

The applicant is a German citizen, born in 1936 and presently detained
in prison in Berlin .... Before his arrest he was practising as a
barrister (Rechtsanwalt) in Berlin.

It follows from the applicant's statements and from documents submitted
by him that on .. October 1970 he was arrested on the suspicion of
having helped a prisoner to escape (Gefangenenbefreiung) and of
attempted murder committed with others (gemeinschaftlicher versuchter
Mord). On .. May 1971 he was acquitted of these charges by the Berlin
Regional Court (Landgericht). The proceedings are however still pending
because the decision was quashed, at the appeal (Revision) of the
Public Prosecutor (Staatsanwaltschaft), and the case was sent back to
the Regional Court for a new trial.

Moreover, the applicant is accused of being one of the founders of a
criminal organisation, called Red Army Group (Rote Armee Fraktion =
RAF), and of having, as a member of this organisation, participated in
three bank robberies committed on .. September 1970 in West Berlin. As
regards these charges the applicant was on trial before the Berlin
Court of Appeal (Kammergericht) when he lodged this application.

The applicant states that since his arrest he has been kept in strict
isolation in the prison of Berlin .... He is not only kept in solitary
confinement (Einzelhaft) but also excluded from participating in the
day-to-day affairs of the prison community, such as church-going and
leisure hours.

The applicant further states that he has been deprived by various court
orders of reading material. As an example he has submitted a decision
of .. March 1972 by which the Berlin Court of Appeal ordered that
certain publications (inter alia "Peking Rundschau", "Rote Robe", "rote
Hilfe"), which were sent to the applicant should not be given to him.
As regards the grounds for this measure, the Court referred to a prior
decision of .. February 1972, a copy of which was not submitted by the
applicant.

By decision of .. May 1972 the Investigating Judge of the Court of
Appeal ordered two days of strict confinement (stronger Arrest) for the
applicant because when participating in a leisure hour, he had, despite
the warning of a warder, called to another prisoner and thereby tried
to make contact with him.

On .. August 1972 the Court of Appeal rejected the applicant's request
to lift his solitary confinement.

The Court stated without giving further reasons that the restrictions
imposed on the applicant had to be maintained in order to secure his
safe detention (weil sonst die sichere Verwahrung des Angeklagten
gefährdet erscheint).

In January 1973 the applicant repeated his request to lift his solitary
confinement stating that the investigations carried out against him
were terminated and that consequently there was no longer a danger that
he would suppress evidence (Verdunkelungsgefahr). He also alleged that
the solitary confinement violated his basic rights (Articles 1 and 104
(1), phrase 2 of the Basic Law = Grundgesetz).

This request was rejected by the Court of Appeal on .. February 1973.
The Court stated that the applicant's solitary confinement was
justified under Article 119 (3) of the Code of Criminal Procedure
(StPO) as being necessary in view of the purpose of the detention on
remand and the order in prison.

The Court pointed out that the applicant was strongly suspected of
being a member of a criminal organisation, namely the so-called "Y-Z
gang", and of having, together with other members of this group and by
using weapons, helped a prisoner to escape. The Court stated that the
liberation of political prisoners was one of this group's objects.

In this connection it referred to a decision by the Federal Court
(Bundesgericht) on .. July 1972 in the course of investigation
proceedings against Y and other gang members. According to this
decision the group had in 1971 and 1972 elaborated plans for the
liberation of its detained members.

Furthermore, the Court of Appeal stated that on October 1972 a
prisoner, one W., had admitted to having been promised 250 DM if he
helped the applicant to escape. The plan had been to seize a warder as
a hostage and to demand the applicant's release in exchange for the
warder's release.

The Court found that the statements of prisoner W. were credible
because this prisoner had in fact received 250 DM from an unknown
person. Furthermore he had named two other prisoners who were involved
in the plan and who were in fact corresponding with the applicant.

Moreover, the Court pointed out that the applicant had declared at the
session of .. January 1973 that the arrest of some gang members
including himself would not stop the fight against the criminal system.
He had also proclaimed that one should help all prisoners to escape.
The Court found that these and similar statements made by the applicant
were likely to rouse prisoners against the warders and even to provoke
a revolution in prison.

According to the Court the applicant also had, in the course of the
trial, repeatedly praised the objectives of the "Red Army Group" and
recommended revolutionising the prisons.

The Court concluded that it was the applicant's own behaviour which
made it impossible to lift his solitary confinement.

Finally the Court stated that solitary confinement did not mean that
the applicant was completely isolated from human contact. He was only,
as far as possible, kept apart from the other prisoners. On the other
hand, the Court pointed out, until January 1973 he was granted
319 visiting hours when he saw his relatives and other people. In
addition the applicant conferred with eight different lawyers in 342
visiting hours. The Court also mentioned the daily contacts he had with
the prison personnel. It added that the applicant had his own radio in
his cell and could obtain nearly all the reading material he wanted.

Complaints

The applicant complains that the Court of Appeal did not establish the
facts stated in its above decision in formal proceedings and that
neither his lawyers nor he himself were given the possibility to submit
observations.

He states that the isolation measures are carried out meticulously by
the prison staff (for the slightest infringements of the isolation
rules the applicant is liable to disciplinary detention).

According to the applicant the fact that the prisoner is strictly
forbidden all contact with his fellow prisoners creates a very
different situation for him compared with normal conditions of
detention on remand, for at community events during recreation and on
other occasions as well, the prisoners usually engage in lively
conversation - actually desired and permitted by the prison authorities
- in the course of which they discuss their everyday problems.

These opportunities for communication are denied to the applicant. They
are nevertheless essential to enable a prisoner to stand a long period
of compulsory social isolation without lasting mental effects, since
a minimum of social contacts is one of the elementary needs of every
human being. That enforced and almost complete social isolation leads
ultimately to serious mental damage has long been recognised by
specialists.

The isolation in which the applicant has been kept for more than two
years is bound, sooner or later, to result in serious, irreparable
damage to his health. He is living in a complete social vacuum. The
fact that no obvious symptoms of illness have yet manifested themselves
says much for his powers of resistance but does not rule out the danger
that his health may be seriously affected for the future.

Visits from his defence counsel and relatives cannot make up for the
lack of normal social contact inside the prison. Whilst discussion,
during visits from his counsel, is in any case restricted to questions
of a legal nature, the weekly visits of relatives, limited to about
twenty minutes, take place under the supervision of one of the prison
staff and criminal police officers, so that no spontaneous, natural
conversation is possible.

The applicant points out that other persons detained on remand in the
same prison and accused of being members of the RAF are not subjected
to any comparable reprisals. On the contrary, they are given an
opportunity of maintaining a minimum of normal social contacts by
spending the leisure hour together with other prisoners.

To complete the picture of how his detention on remand is being
enforced, the applicant adds that he is not even allowed to obtain the
reading material he would like from outside the prison. In this respect
he refers to the above cited order of .. March 1972 by the Berlin Court
of Appeal.

In the applicant's opinion the measure taken against him violates
Article 3 of the Convention. They consequently also constitute a breach
of Articles 1 and 104 (1), second sentence, of the Basic Law.

Article 3 of the Convention forbids inhuman treatment, especially of
prisoners. This prohibition is also applicable to the enforcement of
detention on remand. The essence of this provision is to make it
incumbent upon the State, in its dealing with individuals, to see that
no physical or mental injury is inflicted upon them by improper
treatment.

This principle has also been expressed in the second sentence of
Article 104 (1) of the Basic Law of the Federal Republic of Germany,
according to which persons held in custody shall be neither physically
nor mentally ill-treated. Article 1 of the Basic Law also declares the
inviolability of human dignity. This precept, one of the most important
in this country's legal order, is generally also transgressed when a
prisoner is subjected to treatment which is bound to cause lasting
mental injury.

The provision in Article 3 of the Convention and the fore-mentioned
provisions of the Basic Law contain an unrestricted prohibition or
order. Any measure taken by the State against an individual, which is
contradictory to these provisions, the applicant states, is unlawful
and this without any reservation.

This fundamental fact is naturally of particular significance where
detention on remand is concerned; it is entirely in conformity with the
spirit and purpose of detention on remand.

Detention on remand is both a means of safeguarding a State's right of
punishment and an aid to prosecution. Its effects on the detained are
harsh enough as it is since a man's freedom is one of his most highly
prized legal rights. For anyone who is to be presumed innocent (Article
6 (2) of the Convention) detention on remand represents an exceptional
sacrifice for the sake of the State's right of prosecution, a sacrifice
that can be demanded only if the manner of enforcement and the
consequences of the detention are reasonable and bearable. There derive
from this objective limits to the manner of enforcement, which must on
no account be overstepped by the State. These limits are laid down,
inter alia, by Article 3 of the Convention and Article 1 and Article
104 (1), second sentence, of the Basic Law, the provisions of which
must therefore be complied with in all cases; in doubtful cases, this
applies even where they conflict with the purpose of detention on
remand.

According to the applicant this is also the consistent practice of
German criminal justice, according to which the aged and sick must be
spared detention on remand even where this entails a danger of their
absconding.

The treatment of the applicant allegedly infringes the provisions
prohibiting inhuman treatment (Article 3 of the Convention and Article
104 (1), second sentence, of the Basic Law). If a prisoner is kept in
solitary confinement for an excessive length of time against his will
and thus suffers physical or mental injury this must be regarded as
inhuman treatment. There is all the more reason to qualify as "inhuman"
treatment whereby a person, like the applicant, in addition to being
kept in solitary confinement, is isolated from his fellow prisoners in
the manner described above. In these circumstances all the greater heed
must be paid to the fact that treatment which ignores the applicant's
vital needs is bound to result in grave mental injury.

The treatment accorded to the applicant is allegedly contrary also to
the inviolable principle of the protection of human dignity (Article
1 of the Basic Law). This principle enjoins respect for every
individual's personality in all circumstances. This respect must always
be expressed in treatment worthy of a human being. If the applicant is
subjected to long years of complete social isolation, this amounts to
disregard for his most vital, elementary human needs. Such treatment
must therefore, the applicant concludes, be regarded as unworthy of a
human being.

THE LAW

The applicant has first complained that the Court of Appeal did not
establish in formal proceedings the facts on which it based its
decision of .. February 1973. However, under Article 25 (1) (Art. 25-1)
of the Convention, it is only the alleged violation of one of the
rights and freedoms set out in the Convention that can be the subject
of an application presented by a person, non-governmental organisation
or group of individuals. With regard to the present complaint, no right
to formal proceedings as regards the request of a prisoner on remand
to set aside an order for his solitary confinement is as such included
among the rights and freedoms guaranteed by the Convention.

It is true that Article 6 (1) (Art. 6-1) of the Convention provides
that everyone is entitled to a fair and public hearing in the
determination of his civil rights and obligations or of any criminal
charge against him. The Appeal Court's decision, however, nether
determined a civil right of the applicant nor a criminal charge against
him. It did not even concern the lawfulness of the applicant's
detention within the meaning of Article 5 (4) (Art. 5-4) but only dealt
with the question whether the order for the applicant's solitary
confinement should be set aside or not.

It follows that this part of the application is incompatible ratione
materiae with the provisions of the Convention within the meaning of
Article 27, paragraph (2) (Art. 27-2), of the Convention.

The applicant has further alleged that his solitary confinement
violated Article 3 (Art. 3) of the Convention which provides that "No
one shall be subjected to torture or to inhuman or degrading treatment
or punishment".

The Commission also examined this complaint, ex officio, under Article
17 (Art. 17) in conjunction with Article 5 (1) (Art. 5-1) and under
Article 18 (Art. 18) in conjunction with Article 5 (1) (Art. 5-1).

The Commission first wishes to state its opinion that prolonged
solitary confinement is undesirable, particularly where the prisoner
concerned is in detention on remand. In the latter case, if exceptional
reasons have justified such continuous detention, it can obviously best
be shortened by expediting the trial proceedings.

However, in the present case there are two important factors which
qualify the significance of the applicant's solitary detention.

The Commission first notes that the applicant is not completely
isolated but is kept apart from the other prisoners solely for the
purpose of making his detention secure and of thus maintaining order
in the prison. On the other hand, he is allowed to receive visits and
has made ample use of this possibility up to February 1973, as he has
had more than 650 visiting hours according to the uncontested
statements in the Appeal Court's decision of .. February 1973.
Furthermore, the applicant has reading material available and has a
radio in his cell. In reality therefore he is undergoing segregated
rather than solitary confinement.

The Commission secondly accepts that the applicant by his own behaviour
supplied valid reasons to the German authorities for the refusal of his
request to set aside the order for his solitary confinement. The Court
of Appeal stated in this respect that the applicant had declared that
the fight of the Red Army Group against the criminal system would
continue despite his arrest and that all prisoners should be helped to
escape. The applicant has, in his submissions to the Commission, not
contested that he made these remarks.

In view of all these circumstances the Commission does not find that
the applicant's solitary confinement amounts to inhuman or degrading
treatment or punishment within the meaning of Article 3 (Art. 3), of
the Convention.

The Commission, having also considered this complaint ex officio under
Article 5 (1) (Art. 5-1) in conjunction with Article 18 (Art. 18), is
equally satisfied that the authorities were not subjecting the
applicant to solitary, or what was in effect segregated, confinement
for a purpose other than that of bringing him to trial.

An examination by the Commission of this complaint as it has been
submitted, including an examination made ex officio, does not therefore
disclose any appearance of a violation of the rights and freedoms set
forth in the Convention and in particular in Article 3 (Art. 3), or in
Article 5 (1) (Art. 5-1) read in conjunction with either Article 17
(Art. 17) or Article 18 (Art. 18).

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.

For these reasons, the Commission DECLARES THIS APPLICATION
INADMISSIBLE.