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)