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)