Lexploria

The European Commission of Human Rights sitting in private on

16 October 1986, the following members being present:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

E. BUSUTTIL

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr. H. C. KRÜGER, Secretary to the Commission

Having regard to Article 25 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 17 May 1984 by

T.M. against the Netherlands and registered on 18 June 1984

under file No. 10996/84;

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 is a Dutch citizen, born in 1944, a psychologist by

profession and at present residing at Haarlem, the Netherlands. In

the proceedings before the Commission he is represented by

Mr. L. van Heijningen, a lawyer practising in Amsterdam.

It appears that the applicant fell ill on or about 10 July 1980 and

that after a psychiatric examination he was declared 80-100% unfit to

work by the competent occupational association (Bedrijfsvereniging) on

10 July 1981.

It further appears that the applicant had taken out an insurance

policy concerning his mortgage entered into with a bank in 1978 which

provided that remission of outstanding debts would be granted in case

of a 65% or more disability preventing him from working.

The applicant was, at his own request, declared bankrupt on

4 January 1983, by the Regional Court (Arrondissementsrechtbank) of

Haarlem.

The receiver, in view of the above insurance policy, asked the

applicant by letter of 28 February 1983 to submit evidence of his

disability, since such evidence was not made available by the

occupational association.

On 21 June 1983, the investigating judge (Rechter-Commissaris) ordered

the applicant to make an appointment with a psychiatrist in order to

undergo a further psychiatric examination in the interest of the

settlement of the estate.

The applicant, thereupon, requested the Regional Court of Haarlem to

quash this decision of the investigating judge. However, on

29 July 1983, the court rejected the applicant's request considering,

that his objections were more directed against the administration of

the estate than against his examination by a psychiatrist. The court

further considered that the applicant had previously indicated that he

did not object to a psychiatric examination. Moreover, the court

found that, given the investigating judge's competence to order an

expert examination of all circumstances concerning the bankruptcy, and

in view of the insurance policy entered into with a bank concerning

the applicant's mortgage and covering disability which would prevent

him from working (arbeidsongeschiktheid), the examination was in the

interest of the estate since it could result in a considerable

reduction of the liabilities.

Subsequently, the applicant appealed to the Supreme Court (Hoge Raad),

invoking, inter alia, a violation of Article 8 (Art. 8) of the

Convention, but his appeal was rejected on 23 December 1983.

According to the Supreme Court, the Dutch Bankruptcy Act

(Faillissementswet) could, under certain circumstances, require a

bankrupt to co-operate in an examination concerning his person.

The Supreme Court further held that the protection of the interest of

a bankrupt's estate could be considered as a protection of the rights

of others which in a democratic society justified an interference with

the right to respect for private life.

It appears that the bank, however, refused to grant remission of the

applicant's debts because of doubts as to the latter's incapacity to

work.

The receiver, thereupon, brought proceedings before the Regional Court

of Amsterdam which, on 7 November 1984, appointed three experts to

assess the applicant's inability to work.

On 5 June 1985, the court appointed a new expert and ordered that the

report should be submitted to the court on 2 September 1985.

It appears that the applicant subsequently refused to co-operate in

the examination ordered.

COMPLAINTS

The applicant complains that he has been forced to undergo a

psychiatric examination in order to determine whether he would be

entitled to receive a certain payment under an insurance policy.

He claims that the provisions of the Dutch Bankruptcy Act which

require that a bankrupt cooperates in order to settle claims on the

estate, cannot require someone to subject himself to a psychiatric

examination, constituting an interference with his private life. The

applicant submits that the requirement imposed on him, to undergo a

psychiatric examination against his will, is thus contrary to

Article 8 (Art. 8) of the Convention.

THE LAW

The applicant has complained that the obligation imposed upon him to

undergo a psychiatric examination against his will constituted a

violation of Article 8 (Art. 8) of the Convention which reads:

"1. Everyone has the right to respect for his private and family

life, his home and his correspondence.

2. There shall be no interference by a public authority with the

exercise of this right except such as is in accordance with the law

and is necessary in a democratic society in the interests of national

security, public safety or the economic well-being of the country, for

the prevention of disorder or crime, for the protection of health or

morals, or for the protection of the rights and freedoms of others. "

The Commission recalls that a compulsory psychiatric examination must

be considered to constitute an interference with the right to respect

for private life (cf. Dec. No. 8355/78, 7.5.79, unpublished). A

court order to undergo such an examination must equally be considered

to constitute an interference with the right to respect for private

life.

However, the Commission finds that the examination ordered in the

present case was an interference for which provision is made by

Section 66, para. 1 of the Dutch Bankruptcy Act, and which was

therefore in accordance with the law. Moreover, it appears that this

provision is intended to enable clarification of all circumstances

concerning the bankruptcy and thus pursues a legitimate aim under

Article 8 para. 2 (Art. 8-2) of the Convention, viz. the protection of

the rights of others, the creditors.

It remains to be examined whether the interference was necessary in a

democratic society.

The Commission recalls that "necessary" in this context implies the

existence of a pressing social need in the assessment of which a

margin of application must be left to the States (cf. eg Eur. Court

H.R. Handyside judgment of 7 December 1976, Series A No. 24 para. 48).

The Commission notes that the applicant had entered into a contract of

insurance providing that remission of the outstanding debt on his

workgage would be granted in case he were to become unable to work for

medical reasons. The Commission is satisfied that this could only be

ascertained by a further psychiatric examination. As the psychiatric

examination of the applicant could result in a considerable reduction

of the liabilities of the estate, it was of decisive importance to the

rights of the creditors.

Moreover, the Commission has also had regard to the general interest

which exists in ensuring the proper administration of bankrupt

estates.

Consequently, the Commission is of the opinion that the Dutch courts

could reasonably decide that the interference complained of was

proportionate to the legitimate aim pursued.

The interference with the applicant's right to respect for his private

life was thus necessary in a democratic society for the protection of

the rights of others and therefore justified under para. 2 of

Article 8 (Art. 8-2) 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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M. v. THE NETHERLANDS

M. v. THE NETHERLANDS

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