Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12793/87

by L.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 13 October 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

J. CAMPINOS

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. H.C. KRÜGER Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 16 February

1987 by L. against the Federal Republic of Germany and registered on

16 March 1987 under file No. 12793/87;

Having regard to the report provided for in Rule 40 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

applicant, may be summarised as follows:

The applicant, born in 1934, is a German national and resident

in Bonn.

In 1981 the applicant, his wife and others, who own apartments

in a group of apartment houses, instituted civil proceedings before

the Bonn District Court (Amtsgericht) challenging various decisions

taken by the assembly of owners under the Freehold Flat Act (Wohnungs-

eigentumsgesetz).

On 20 July 1982 the District Court declared two of the

decisions null and void and dismissed the remainder of the actions.

Both parties lodged appeals (sofortige Beschwerde) with the

Bonn Regional Court (Landgericht) in August 1982. The appeal

proceedings concerning the applicant and his wife were provisionally

discontinued in December 1982, because the Court had doubts as regards

their capacity to sue (Prozeßfähigkeit). Their appeals against this

decision were unsuccessful.

In December 1983, in the course of criminal proceedings against

the applicant, in particular on charges of defamation, the Bonn

Regional Court ordered a medical expert opinion on the question of the

applicant's criminal responsibility. Following proceedings to enforce

the applicant's examination, the expert delivered her opinion in

December 1985. The criminal proceedings were discontinued by the

Regional Court in January 1986.

In July 1984, in the civil proceedings which had been resumed

in the meantime, the defendant requested the Bonn Regional Court to

appoint a guardian for the applicant and his wife.

On 21 January 1986 the Bonn Regional Court dismissed the

actions. As regards the question of the applicant's capacity to

sue, the Court noted that it had examined the files of the criminal

proceedings against the applicant and considered the medical expert

opinion of December 1985 on the question of his criminal

responsibility. The Court cited the expert's conclusions according to

which the applicant was not mentally ill or imbecile or querulous in

the psychopathic sense and was, therefore, criminally responsible.

Having regard to this medical expert opinion the Court found that

there were no doubts concerning the applicant's capacity to sue.

On 3 February 1986 the Bonn Regional Court dismissed the

applicant's requests of 29 January 1986 to remove the medical expert

opinion of December 1985 from the files concerning the civil

proceedings and to remove all references to the expert opinion in the

decision of 21 January 1986. The Court noted that the expert opinion

in question had already been sent back to the criminal court.

Furthermore the Court found that the reference to the expert opinion

had been limited to the positive results and could not, therefore, be

considered as degrading.

On 24 April 1986 the Cologne Court of Appeal (Oberlandes-

gericht) dismissed the applicant's appeal (Beschwerde). The Court of

Appeal found in particular that the affirmation of his capacity to

sue did not prejudice the applicant.

On 13 August 1986 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde).

The Constitutional Court considered that there were doubts as

the admissibility of the applicant's constitutional complaint. The

Constitutional Court referred, in this respect, to the facts that the

decision on the applicant's capacity to sue was to his advantage, the

copy of the medical opinion concerned had in the meantime been sent

back to the criminal court and that nobody except the Rapporteur at

the Bonn Regional Court had access to the medical opinion. However it

left this question open on the ground that the complaint anyway

offered no prospect of success.

The Constitutional Court found that the use as evidence of the

medical expert opinion and the reference to it in the Regional Court's

judgment did not violate the applicant's rights under the Basic Law

(Grundgesetz). It considered that the Regional Court had under S. 12

of the Code of Non-Contentious Proceedings (Gesetz über die

Angelegenheiten der freiwilligen Gerichtsbarkeit), which was

applicable in the instant case, to establish, ex officio, the

applicant's capacity to sue. It could use as evidence in this respect

the medical opinion previously delivered in criminal proceedings

against the applicant in order to spare him the strain of a further

medical examination. The Regional Court had thus balanced the

conflicting interests of the parties involved and interfered with the

applicant's interests as little as possible. Furthermore, the

Constitutional Court considered that the Regional Court had to refer,

in its decision, to the results of the medical expert opinion which

did not in any way prejudice the applicant. The information about the

previous medical examination did not, as such, degrade the applicant;

it was justified by the necessity to determine procedural issues.

COMPLAINTS

The applicant complains under Article 8 para. 1 of the

Convention that the Bonn Regional Court used as evidence the medical

expert opinion on his criminal responsibility prepared in the context

of criminal proceedings against him and that the Court referred to the

conclusions of this opinion in its decision of 21 January 1986.

The applicant considers that the Regional Court interfered

with his right to respect for his private life. He alleges that this

interference was unlawful under German law on the ground that a party

in civil proceedings cannot be forced to have himself examined as

regards his capacity to sue.

THE LAW

The applicant complains that the use as evidence in the civil

proceedings of a medical opinion as regards his criminal

responsibility and the reference to the positive results of this

opinion in the Regional Court's decision of 21 January 1986 violate

his right to respect for his private life under Article 8 para. 1

(Art. 8-1) of the Convention.

Article 8 para. 1 (Art. 8-1) of the Convention provides that

everyone has the right to respect for his private and family life, his

home and his correspondence.

The Commission recalls that issues of data protection may come

within the scope of Article 8 para. 1 (Art. 8-1) of the Convention

(cf. mutatis mutandis, Eur. Court. H.R., Leander judgment of 26

March 1987, Series A no. 116, p. 22 para. 48).

In the present case, the Commission notes that the applicant

had instituted civil proceedings in the course of which the defendant

contested his capacity to sue. The Regional Court had to consider this

issue ex officio. The Rapporteur at the Bonn Regional Court examined

a copy of the medical expert opinion prepared in the context of

criminal proceedings according to which the applicant did not suffer

from any mental illness, imbecility or psychopathically querulous

symptoms. The copy had in the meantime been sent back to the criminal

court. In its decision of 21 January 1986, the Regional Court only

referred to the findings of the medical expert opinion confirming the

applicant's capacity to sue. The Federal Constitutional Court found

in particular that the manner in which the Regional Court had

established the applicant's capacity to sue was lawful. It considered

that the information about the medical examination did not as such

degrade the applicant and that the results of that opinion did not

prejudice the applicant.

The Commission considers that, in the circumstances of the

present case, the use of the medical expert opinion as evidence and

the reference in the Regional Court's judgment to it served the due

course of the court proceedings concerned. The Commission finds that

the conduct of the proceedings before the Regional Court, in

particular the examination of the medical expert opinion only by the

Rapporteur, does not show any lack of respect for the applicant's

private life under Article 8 para. 1 (Art. 8.-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

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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L. v. the FEDERAL REPUBLIC OF GERMANY

L. v. the FEDERAL REPUBLIC OF GERMANY

LEXI