Lexploria

The European Commission of Human Rights sitting in private on

10 October 1986, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

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

J. CAMPINOS

H. VANDENBERGHE

Mrs G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr. J. RAYMOND, Deputy 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 3 June 1985 by

R. and M.N. against the Federal Republic of Germany and

registered on 28 June 1985 under file No. 11604/85;

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 applicants

may be summarised as follows:

The applicants, a married couple, are German citizens resident in

Cologne. The first applicant, born in 1937, is a housewife. The

second applicant, born in 1937 in Syria, is a doctor by profession. At

the time of lodging his application he was apparently not residing in

Germany. The applicants have three children who are approximately 22,

17 and 13 years old. The family is living on social security

benefits. In the proceedings before the Commission, the applicants

are represented by Mr. Meinecke, a lawyer practising in Cologne.

On 14 December 1981, the Bonn Regional Court (Landgericht) sentenced

the second applicant to two years and three months' imprisonment on

the ground of fraud. The judgment became final on 14 April 1983.

On 28 July 1983, the second applicant lost his right to practise as a

panel doctor and closed his practice afterwards.

On 13 October 1983, the Cologne Regional Court dismissed the second

applicant's request for reinstitution into the proceedings

(Wiederaufnahmeantrag) as being inadmissible. On 23 November 1983,

the Cologne Court of Appeal (Oberlandesgericht) dismissed the second

applicant's appeal (Beschwerde) on the suspicion that the alleged new

facts were untrue and that the invoked evidence was falsified. In

September and December 1983, the Bonn Public Prosecutor's Office

(Staatsanwaltschaft) provisionally decided not to execute his sentence

in view of his allegedly bad state of health. Two separate medical

opinions of 25 March 1984 and 10 July 1984 confirmed the second

applicant's physical ability to serve the sentence.

In August 1983 and in August 1984, the applicants informed the Public

Prosecutor's Office that the execution of the sentence would induce

the first applicant to commit suicide. A specialist medical opinion

dated 17 October 1984, which was ordered by the Prosecutor's Office

according to the applicants' information, confirmed the risk of the

first applicant's suicide. The opinion referred to the first

applicant's previous attempt to commit suicide in spring 1983.

On 15 November 1984, the same office ordered that the second applicant

should start serving his term of imprisonment.

On 14 January 1985, the Bonn Regional Court dismissed the second

applicant's further objections as to the admissibility of the

execution of his sentence. The Court held the execution of the

sentence to be admissibile despite the reliably proven risks of

suicide which it would entail for the first applicant. The Court

observed that the public interest in the execution generally overrode

possible disadvantages for family members. The Code of Penal

Procedure (Strafprozessordnung) did not provide for a waiver of

execution in these cases. Moreover, the execution could not be

considered as being disproportionate with regard to the constitutional

guarantee of life and personal integrity. The risk of suicide could

be eliminated by other measures, especially medical supervision and

further care by relatives. Furthermore, the Prosecutor's Office might

be required to take measures according to the Act on Persons of

Unsound Mind and Drug Addicted Persons (Gesetz über die Unterbringung

Geistes- und Suchtkranker). The Court finally referred to the

possibility of requesting an act of pardon.

On 26 February 1985, the Cologne Court of Appeal dismissed the second

applicant's appeal (Beschwerde). The Court specially pointed out that

the public interest in an efficient criminal justice did not allow

that a third person prevented the execution of a sentence.

On 11 April 1985, the Bonn Public Prosecutor's Office ordered the

second applicant to start serving his sentence on 1 May 1985.

On 17 April 1985, the Federal Constitutional Court

(Bundesverfassungsgericht) rejected the applicants' constitutional

complaints as offering no prospect of success. Insofar as the

previous instance considered the public interest in the execution of

sentences generally to take priority over private rights and

interests, the Court admitted an error in reasoning though this error

did not render the previous instance's decision unconstitutional. In

this respect the Court held that it was still possible to pardon the

second applicant, to grant him special conditions of detention in

order to ensure a close contact with his wife or to take special care

of the first applicant during the period of detention. The Court

considered in particular measures of public care on the basis of the

Act on Persons of Unsound Mind and Drug Addicted Persons as well as

measures of control within the first applicant's family.

On 2 May 1985, the Bonn Regional Court (Landgericht) dismissed a

further request for an act of pardon.

COMPLAINTS

1. The first applicant complains under Article 2 (Art. 2) of the

Convention that the execution of her husband's sentence entails a

violation of her right to life. She alleges that if her husband had

to start serving his sentence this would necessarily induce her to

commit suicide and therefore amount to an intentional deprivation of

her life.

2. The second applicant complains that the execution of his

sentence would force him to assist in the intentional deprivation of

his wife's life in contravention of his convictions as a Christian and

a medical practitioner and therefore subject him to inhuman and

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

Convention.

THE LAW

1. The first applicant complains of the execution of the second

applicant's sentence to two years and three months' imprisonment. She

alleges that the execution will induce her to commit suicide. She

relies on Article 2 para. 1 (Art. 2-1) of the Convention which states:

"Everyone's right to life shall be protected by law. No one shall be

deprived of his life intentionally save in the execution of a sentence

of a court following his conviction of a crime for which this penalty

is provided by law."

The Commission recalls its case law according to which the first

sentence of Article 2 (Art. 2) imposes a broader obligation on the

State than that contained in the second sentence. The concept that

"everyone's life shall be protected by law" enjoins the State not only

to refrain from taking a person's life "intentionally" but also to

take appropriate steps to safeguard life (see No. 7154/75, Dec.

12.7.78, D.R. 14 p. 31). In this connection, the Commission has

already found that the complaint about a forced eviction which

endangered the debtor's life raised complex questions of law and fact

(see No. 5207/71, Dec. 13.12.71, Yearbook 14 p. 698).

The Commission considers that, even assuming that Article 2 para. 1

(Art. 2-1) of the Convention obliges a State to waive the execution of

a sentence if it necessarily entails the danger of inducing a close

relative to commit suicide, there is no evidence to indicate a

violation of this obligation in the present case. The Commission

observes that especially the Federal Constitutional Court in its

decision of 17 April 1985 carefully examined the question whether or

not the alleged danger of the first applicant committing suicide

rendered the execution of the second applicant's sentence

inadmissible. The Court here referred to measures which could be

taken in order to avoid this danger, such as the granting of

conditions of detention which would allow close contact between both

applicants. The Court moreover considered measures of public care on

the basis of the Act on Persons of Unsound Mind and Drug Addicted

Persons as well as private action of control and supervision within

the first applicant's family.

The Commission does not therefore find any evidence which would

indicate that the execution of the second applicant's sentence would

either constitute an intentional deprivation of the first applicant's

life or exclude the taking of appropriate and adequate steps to

safeguard her life within the meaning of Article 2 para. 1 (Art. 2-1)

of the Convention.

It follows that the first applicant's complaint under Article 2

(Art. 2) of the Convention is manifestly ill-founded within the

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

2. The second applicant complains under Article 3 (Art. 3) of the

Convention that the execution of his sentence forces him to assist in

the intentional deprivation of his wife's life and thus subjects him

to inhuman and degrading treatment.

However, the Commission has just found that the execution of the

second applicant's sentence does not constitute a violation of the

first applicant's right to life under Article 2 para. 1 (Art. 2-1) of

the Convention. The Commission considers therefore that in the light

of all the circumstances of the case the execution of the second

applicant's sentence cannot be regarded as constituting inhuman or

degrading treatment under Article 3 (Art. 3) of the Convention.

The Commission concludes that an examination of the complaint, as it

has been submitted, does not disclose any appearance of a violation of

the rights and freedoms set out in Article 3 (Art. 3).

It follows that the second applicant's complaint is also 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

Deputy Secretary to the Commission President of the

Commission

(J. RAYMOND) (C.A. NØRGAARD)

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NADDAF v. THE FEDERAL REPUBLIC OF GERMANY

NADDAF v. THE FEDERAL REPUBLIC OF GERMANY