Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 35638/97

by W. M.

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 2 July 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 19 January 1997

by W.M. against Germany and registered on 16 April 1997 under file No.

35638/97;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1941, is a German national and resident

in Krefeld. In the proceedings before the Commission, he is represented

by Mr. Schultz, a lawyer practising in Cologne.

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

summarised as follows.

In 1985 proceedings for the forced sale by auction were brought

by a banking institute which concerned real estate owned by the

applicant, including a parcel of land with a house occupied by the

applicant.

On 4 July 1994 the Krefeld District Court (Amtsgericht) decided

that the estate should be sold (Zuschlagsbeschluß) to the banking

institute which had made the highest offer.

On 30 November 1995 the Krefeld Regional Court (Landgericht)

dismissed the applicant's appeal against the decision of 4 July 1994.

However, upon the applicant's petition under S. 765a of the Code of

Civil Procedure (Zivilprozeßordnung), it temporarily stayed the

execution proceedings.

S. 765a para. 1 of the Code of Civil Procedure provides that, on

application by the debtor, the court in execution proceedings may

wholly or in part suspend, prohibit or temporarily stay a measure of

enforcement, if the measure, after full examination of the creditor's

need for protection, is found because of very exceptional circumstances

to involve a hardship incompatible with equity.

In its decision, the Regional Court, having regard to a

psychiatric expert opinion, found that there was a serious risk of the

applicant's committing suicide if he were to be forcibly evicted.

According to the expert, the applicant was depressive as a result of

his serious financial losses and suffering from an abuse of

medicaments. The Regional Court, referring to the case-law of the

Federal Constitutional Court (Bundesverfassungsgericht), considered

that, in such a situation, the debtor's right to life outweighed the

interests of the creditor in pursuing the execution proceedings. In the

circumstances of the applicant's case, the Regional Court found a stay

of execution for a period of six months appropriate in order to permit

the applicant to undergo medical and psychiatric treatment. The

applicant was ordered to start such treatment immediately.

On 20 March 1996 the Düsseldorf Court of Appeal

(Oberlandesgericht) dismissed both the applicant's and the creditor's

appeals.

On 22 May 1996 the Federal Constitutional Court refused to

entertain the applicant's constitutional complaint

(Verfassungsbeschwerde).

On 19 June 1996 the Krefeld District Court, upon the applicant's

request, again temporarily stayed the execution proceedings and ordered

the taking of new expert evidence as to the question of the applicant's

suicidal tendencies and possible treatment.

On 19 July 1996 the Krefeld District Court dismissed the

applicant's request for a further stay of the execution. The District

Court noted the findings of the expert according to which the risk of

the applicant's committing suicide persisted, while the applicant had

not undertaken any steps with a view to a medical treatment of his

problems. The District Court considered that the applicant's conduct

could not result in a permanent stay of the execution.

On 8 October 1996 the Krefeld Regional Court dismissed the

applicant's appeal. The Regional Court found that the risk of suicide

was only one element in balancing the debtor's and the creditor's

competing interests. While in the present case there still existed a

serious risk that the applicant would commit suicide if forcibly

evicted, the applicant had failed to undergo a psychiatric treatment

which, as confirmed by the expert, was in principle possible if

accepted by the applicant. Moreover, the applicant had never paid any

compensation for the use of the house, but had only offered such

payment for the future. The Regional Court concluded that, having

regard to all circumstances, it was evident that the applicant had

attempted to obstruct the execution proceedings by all means.

On 20 December 1996 the Federal Constitutional Court refused to

entertain the applicant's constitutional complaint. The decision was

served upon his counsel on 10 January 1997.

COMPLAINTS

The applicant complains under Article 2 of the Convention that

the German court decisions refusing his request for a further stay of

the execution proceedings entail a risk of his committing suicide. He

refers to the Commission's decision of 13 December 1971 (No. 5207/71,

Collection 39, p. 99).

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 29 January 1997.

On 6 February 1997 the President refused the applicant's request

for interim measures pursuant to Rule 36 of the Commission's Rules of

Procedure.

The application was registered on 16 April 1997.

THE LAW

The applicant complains that German court decisions refusing a

further stay of execution proceedings, as a result of which he will be

evicted from his place of residence, amount to a violation of Article 2

(Art. 2) of the Convention.

Article 2 (Art. 2) of the Convention provides, inter alia, as

follows:

"Everyone's right to life shall be protected by law."

The Commission recalls that this provision imposes on the

Contracting States an obligation to take appropriate steps to protect

life (cf. No. 9348/81, Dec. 28.2.83, D.R. 32, p. 190; No. 11604/85,

Dec. 10.10.86, D.R. 50, p. 259). The Commission has also had regard to

its decisions on Application No. 5207/71, concerning complaints under

Articles 2 and 3 (Art. 2, 3) of the Convention about the German courts'

refusal to order a stay of the forced eviction of an elderly lady. This

application, declared admissible in 1971, was later rejected under

Article 29 (Art. 29) for abuse of the right of petition as it was

merely designed to evade obligations under domestic law (Dec. 1.6.72,

Collection 42, p. 85).

In the present case, the competent German courts, having taken

medical expert evidence, did grant the applicant's first request for

a stay of execution in order to permit him to undergo psychiatric

treatment. After expiry of the six-months stay of the execution, the

applicant applied for a prolongation. Having again taken expert

evidence, the Krefeld District Court dismissed this request. It found

that, while a risk of suicide persisted, the applicant had failed to

take any steps with a view to his treatment. However, his conduct could

not result in a permanent stay of the execution. This decision was

confirmed upon appeal by the Krefeld Regional Court, after having

carefully balanced the applicant's and the creditor's competing

interests. The Regional Court concluded that the applicant had merely

attempted to obstruct the forced sale by auction.

In these circumstances, the Commission is satisfied that the

German courts examined the applicant's health and conduct with

sufficient care. There is no indication that the continuation of the

execution proceedings in question would as such amount to a deprivation

of the applicant's life or exclude that other appropriate and adequate

steps be taken to safeguard his life within the meaning of Article 2

para. 1 (Art. 2-1) of the Convention.

Accordingly, there is no appearance of a breach of the

obligations of the German authorities under Article 2 para. 1

(Art. 2-1) of the Convention.

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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W.M. v. GERMANY

W.M. v. GERMANY