Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21701/93

by N.W.

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 30 June 1993, the following members being present:

MM. F. ERMACORA, Acting President of the First Chamber

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

Mrs. M.F. BUQUICCHIO, Secretary to the First 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 20 May 1992 by

N.W. against Germany and registered on 22 April 1993 under file No.

21701/93;

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, a law student, is a German citizen living in M.

He complains about the denial of legal aid in the course of civil

proceedings.

It follows from his statements and the documents submitted that

the applicant tried to bring a civil action for damages against a

medical doctor. He alleged that several years ago he consulted the

doctor for complaints of a urological nature. Subsequently he

discovered in 1989 that the doctor had reported on his case in an

article published in the Medical Tribune of 27 June 1986. The report

in question referred to a law student who suffered from prostatitis

whenever he was in a particular stress situation (exams). The doctor

explained that in such a case a surgical operation (urethrotomie) was

of no use and only produced a disabled person (iatrogener Krüppel).

On 8 January 1991 the Munich Regional Court (Landgericht)

rejected the request for legal aid. The Court stated that the medical

report in question interfered with the applicant's right to privacy.

The question of whether or not the interference was unlawful or not had

to be decided by balancing this right and the doctor's right to inform

others about his clinical experience in the interests of advancing the

medical profession. Considering that the publication in question did

not name the applicant nor contain any other indications allowing to

identify him, the court found that the publication did not violate the

applicant's right to privacy.

On 10 June 1991 the Munich Court of Appeal (Oberlandesgericht)

rejected the applicant's appeal against the denial of legal aid.

Insofar as the applicant had pointed out that in the medical article

he was referred to as a disabled person (Krüppel) the court stated that

there was nothing to show that this term related to him.

The applicant then lodged a constitutional complaint which was

rejected by a group of three judges of the Federal Constitutional Court

(Bundesverfassungsgericht) on 19 December 1991 as being partly

inadmissible and partly clearly ill-founded. The Court also refused

to grant legal aid. It is stated in the decision that the civil courts

had taken into account that the applicant's constitutional right to

respect of his private right had been interfered with but not in an

illegal manner as the medical doctor did have an interest in reporting

on the medical case and had done so in a manner which did not reveal

the applicant's identity. In these circumstances the decisions

complained of did not disclose any appearance of arbitrariness or

violation of constitutional rights.

COMPLAINTS

The applicant submits that he was denied a fair hearing because

the Court of Appeal which in its decision of 10 June 1991 had fixed the

value of claim to DM 100 should have informed him earlier about the

amount of the value of claim and he would then have submitted further

arguments. He also submits that the Federal Constitutional Court did

not consider his arguments and invokes Articles 6 and 8 of the

Convention.

THE LAW

The applicant complains of the denial of legal aid and submits

that he did not have a fair hearing. He invokes Article 6 para. 1

(Art. 6-1) which provides inter alia:

"In the determination of his civil rights and obligations

or of any criminal charge against him, everyone is entitled

to a fair and public hearing... by an independent and

impartial tribunal established by law..."

It is true that according to the decision of the European Court

of Human Rights in the Airey Case Article 6 para. 1 (Art. 6-1)

guarantees to litigants an effective right of access to the courts for

the determination of their "civil rights and obligations". However,

the Court made it clear that it left to the state a free choice of the

means to be used towards this end and furthermore that there was no

obligation on the state to provide free legal aid for every dispute

relating to a "civil right" (see judgment of 9 October 1979, Series A,

Vol. 32, p. 15).

It is self-evident that where a state chooses a "legal aid"

system to provide for access to court, such a system can only operate

effectively, given the limited resources available, by establishing

machinery to select which cases should be legally aided. Such

limitations on the availability of free legal aid, common to most

Convention countries, often require that the proposed litigation have

reasonable prospects of success. Article 6 para. 1 (Art. 6-1) does not

require that legal aid be provided in every case, irrespective of the

nature of the claim and supporting evidence. Where an individual is

refused legal aid in a particular case because his proposed civil claim

is not sufficiently well grounded the burden would then fall on him to

secure his "access to court" in some other way such as, for example,

bringing the action himself or seeking assistance from some other

source.

In the present case, the Commission notes that German courts

carefully examined the applicant's arguments and considered that his

proposed action lacked reasonable prospects of success mainly because

the medical report which the applicant considered to violate his right

to privacy contained nothing that indicated that the applicant was the

patient referred to.

It cannot, in the circumstances of the case, be found that the

denial of legal aid was arbitrary.

Moreover, the applicant, a law student, has not shown that he is

under all circumstances prevented from initiating civil proceedings by

other means.

Consequently it cannot be found that he was denied "access to

court" (cf. No. 8158/78, Dec. 10.6.80, D.R. 21, p. 95 para. 102).

Furthermore, and even assuming that Article 6 (Art. 6) applies

to proceedings relating to the request for legal aid, there is nothing

to show that the applicant did not have adequate possibility for

arguing his case. Finally it cannot be found that the denial of legal

aid in any way amounted to an interference with the applicant's right

under Article 8 (Art. 8) of the Convention.

It follows that his complaint must be rejected as being

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

Secretary to the First Chamber Acting President of the

First Chamber

(M.F. BUQUICCHIO) (F. ERMACORA)

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N.W. v. GERMANY

N.W. v. GERMANY

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