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)