Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25274/94

by Alban and Hildegard SCHARPF

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 18 October 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 13 July 1994 by

Alban and Hildegard SCHARPF against Germany and registered on

22 September 1994 under file No. 25274/94;

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 facts of the case, as they have been submitted by the

applicants, may be summarised as follows.

The applicants, born in 1958 and 1962, respectively, are German

nationals and resident at Markt-Rettenbach. In the proceedings before

the Commission, they are assisted by Ms. H. Kustermann, president of

an Oberstdorf association.

In 1991 the applicants' daughter, born in wedlock in 1988, fell

ill with leukaemia. Following a first term of chemotherapy, the

applicants decided not to continue the subsequent terms of their

daughter's treatment. In September 1991 the Memmingen District Court

(Amtsgericht), upon the request of the physicians having treated the

applicants' daughter, withdrew the applicants' right to custody to the

extent that the question of their daughter's medical treatment was

concerned, and appointed the Unterallgäu Youth Office (Jugendamt) as

supplementary guardian (Ergänzungspfleger). The applicants' appeal was

to no avail. In October 1991 the District Court ordered the applicants

immediately to hand over their daughter to the supplementary guardian

or to bring her themselves to the hospital in Ulm. In this respect the

District Court had regard to the guardian's submission that the

applicants had disappeared with their daughter. Upon the applicants'

objection, this decision was modified to the effect that they were

ordered to bring their daughter to any appropriate hospital. The

applicants subsequently brought their daughter first to a hospital in

Tübingen and then to a special hospital abroad, and the decisions of

September and October 1991 were set aside in November 1991. Having

returned from abroad, their daughter remained at the applicants' home

under medical surveillance by a paediatrician. The applicants'

daughter died suddenly on 21 July 1993.

On 22 July 1993 the Memmingen District Court ordered that the

body of the applicants' daughter be seized and subjected to a post-

mortem examination. The Court, referring to SS. 94 and 87 of the

German Code of Criminal Procedure (Strafprozeßordnung), noted that the

applicants had objected to a post-mortem examination which was

considered to be necessary in order to determine the cause of their

daughter's death and thereby to determine whether a third person could

be held responsible for her death. The applicants' right to take care

of their deceased daughter (Totensorgerecht) was outweighed by the

public interest in establishing the truth regarding the child's death.

On 23 July 1993 the Memmingen Regional Court dismissed the

applicants' appeal. The Regional Court considered that, in accordance

with the relevant provisions of the Code of Criminal Procedure, the

seizure and post-mortem examination could be ordered in case of doubt

as to whether the death had been caused by negligence. In the present

case, the measures ordered by the District Court were necessary in

order to clarify the precise cause of the child's death as well as to

examine whether criminal negligence was involved. The Regional Court

noted the background of the case and the reporting in the media which

inter alia suggested that the applicants' refusal of medical treatment

had caused the child's death.

The applicants, represented by counsel, thereupon filed a

constitutional complaint (Verfassungsbeschwerde) with the Federal

Constitutional Court (Bundesverfassungsgericht) regarding the court

decisions ordering the seizure and post-mortem examination of their

deceased daughter, and also requested an interim injunction

(einstweilige Anordnung). As the post-mortem examination had already

been carried out before their submissions were received by the

Constitutional Court, the applicants amended their remedies. They then

requested that the Constitutional Court should declare the examination

in question unlawful and, in interim proceedings, order that the report

on the examination be taken in safe-keeping until a decision on the

merits of their constitutional complaint, that the report be destroyed

and the organs of their deceased daughter, which had been removed in

the course of the examination, be transferred immediately to the

applicants' place of residence and not be destroyed or thrown away.

On 27 July 1993 the Federal Constitutional Court dismissed the

applicants' request for the interim injunction on the ground that at

that stage of the proceedings the applicants' constitutional complaint

appeared to be manifestly ill-founded. The Constitutional Court found

that the decisions ordering the seizure and post-mortem examination

could not be objected to under constitutional law. In particular, the

measures in question served the purpose of establishing the cause or

time of death or whether a third person could be held criminally

responsible, and would not, therefore, disregard the deceased person's

dignity. Furthermore, the applicants' right to take care of their

deceased daughter had not been infringed. Such right was limited by

the provisions of the Code of Criminal Procedure on post-mortem

examinations, serving the public interest in detecting and prosecuting

criminal offences having caused the death of a person. The principle

of proportionality was respected as long the authorities acted on the

basis of a suspicion that a criminal offence could have been committed.

The necessity to order such examinations, and carry them out, as soon

as possible in order not to impair the results had to be taken into

account. In the present case, the criminal courts when ordering the

seizure and post-mortem examination of the applicants' deceased

daughter had balanced the applicants' private interests against the

public interest in the prosecution of crime. Their findings that

medical negligence or negligence on the part of the applicants could

not be excluded in the circumstances and that therefore the examination

was necessary to establish the cause of the child's death could not be

objected to.

According to a press communique issued by the Memmingen Public

Prosecutor's Office (Staatsanwaltschaft) in September 1993, the

applicants' daughter had died of leukaemia.

On 4 January 1994 the Federal Constitutional Court refused to

admit the applicants' constitutional complaint. The Constitutional

Court referred to its earlier decision of 27 July 1993. It further

found that having regard to the circumstances of their deceased

daughter's disease and of her medical treatment the order of a post-

mortem examination could not be objected to on the ground that criminal

responsibility regarding the child's death had appeared possible. To

the extent that the applicants complained about the circumstances of

the post-mortem examination, the Constitutional Court observed that

these issues were not covered by the court order but fell within the

responsibility of the surgeons concerned. The applicants' complaint

as to the failure to return all organs of their deceased daughter, the

Court considered that they had failed to show that such organs had been

in fact held back, and that they had anyway failed to exhaust the

ordinary remedies. The decision was served on 19 January 1994.

It appears that the preliminary investigations against the

paediatrician who had been in charge of the deceased child's medical

surveillance were recently discontinued.

COMPLAINTS

The applicants complain that the seizure and post-mortem

examination of their deceased daughter, the circumstances of the

examination and the fact that organs were retained and could not be

buried subjected them to inhuman treatment contrary to Article 3 of the

Convention. In this context, they also refer to the circumstances of

the medical treatment in 1991.

THE LAW

1. The applicants complain about the decision of the Memmingen

District Court of 22 July 1993 ordering the seizure and post-mortem

examination of their deceased daughter, as confirmed by the Memmingen

Regional Court and the Federal Constitutional Court. They also submit

that organs were retained and could not be buried.

The Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention (cf. No. 21283/93, Dec. 5.4.94, D.R. 77, pp. 81, 88 and Eur.

Court H.R., Van de Hurk judgment of 19 April 1994, Series A no. 288,

p. 20, para. 61; Klaas judgment of 22 September 1993, Series A no. 269,

p. 17, para. 29).

The applicants consider that the seizure and post-mortem

examination of their deceased daughter amount to inhuman and degrading

treatment within the meaning of Article 3 (Art. 3) of the Convention.

Article 3 (Art. 3) of the Convention provides that "no one shall

be subjected to torture or to inhuman or degrading treatment or

punishment."

The Commission finds that it is primarily for the domestic

prosecution authorities and courts to decide whether or not, in given

circumstances, there are reasons calling for investigations in the case

of a person's death. In the present case, the impugned court decisions

ordering the seizure and post-mortem examination of the applicants'

deceased daughter were taken against the background of the child's past

suffering from leukaemia, and the events at the time and following her

chemotherapy in 1991. The Federal Constitutional Court, in its

detailed decisions of 27 July 1993 and 4 January 1994, considered that

these decisions could not be objected to under constitutional law. The

Commission observes that the seizure and post-mortem examination of the

applicants' daughter was ordered, in accordance with the relevant

provisions of the German Code of Criminal Procedure, for the purpose

of establishing the cause of her death because there were doubts as to

a possible criminal responsibility on the ground of negligence.

Considering all circumstances, the Commission finds that the court

decisions ordering the measures concerned cannot be regarded as inhuman

or degrading.

Moreover, the applicants' submissions regarding the circumstances

of the post-mortem examination of their deceased daughter, in substance

concern the conduct of the doctors involved in the post-mortem

examination and do not disclose any disregard for their rights by State

authorities.

Accordingly, there is no appearance of a violation of Article 3

(Art. 3) of the Convention.

It follows that this part of the application is manifestly ill-

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

Convention.

2. To the extent that the applicants appear to complain about the

events in 1991, the Commission finds that these submissions were not

brought within the time-limit of six months, as required by Article 26

of the Convention. This part of the application must, therefore, be

rejected under Article 27 para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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SCHARPF v. GERMANY

SCHARPF v. GERMANY

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