AS TO THE ADMISSIBILITY OF
Application No. 21701/93
by N.W.
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 30 June 1993, the following members being present:
MM. F. ERMACORA, Acting President of the First Chamber
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
Mrs. M.F. BUQUICCHIO, Secretary to the First Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 20 May 1992 by
N.W. against Germany and registered on 22 April 1993 under file No.
21701/93;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a law student, is a German citizen living in M.
He complains about the denial of legal aid in the course of civil
proceedings.
It follows from his statements and the documents submitted that
the applicant tried to bring a civil action for damages against a
medical doctor. He alleged that several years ago he consulted the
doctor for complaints of a urological nature. Subsequently he
discovered in 1989 that the doctor had reported on his case in an
article published in the Medical Tribune of 27 June 1986. The report
in question referred to a law student who suffered from prostatitis
whenever he was in a particular stress situation (exams). The doctor
explained that in such a case a surgical operation (urethrotomie) was
of no use and only produced a disabled person (iatrogener Krüppel).
On 8 January 1991 the Munich Regional Court (Landgericht)
rejected the request for legal aid. The Court stated that the medical
report in question interfered with the applicant's right to privacy.
The question of whether or not the interference was unlawful or not had
to be decided by balancing this right and the doctor's right to inform
others about his clinical experience in the interests of advancing the
medical profession. Considering that the publication in question did
not name the applicant nor contain any other indications allowing to
identify him, the court found that the publication did not violate the
applicant's right to privacy.
On 10 June 1991 the Munich Court of Appeal (Oberlandesgericht)
rejected the applicant's appeal against the denial of legal aid.
Insofar as the applicant had pointed out that in the medical article
he was referred to as a disabled person (Krüppel) the court stated that
there was nothing to show that this term related to him.
The applicant then lodged a constitutional complaint which was
rejected by a group of three judges of the Federal Constitutional Court
(Bundesverfassungsgericht) on 19 December 1991 as being partly
inadmissible and partly clearly ill-founded. The Court also refused
to grant legal aid. It is stated in the decision that the civil courts
had taken into account that the applicant's constitutional right to
respect of his private right had been interfered with but not in an
illegal manner as the medical doctor did have an interest in reporting
on the medical case and had done so in a manner which did not reveal
the applicant's identity. In these circumstances the decisions
complained of did not disclose any appearance of arbitrariness or
violation of constitutional rights.
COMPLAINTS
The applicant submits that he was denied a fair hearing because
the Court of Appeal which in its decision of 10 June 1991 had fixed the
value of claim to DM 100 should have informed him earlier about the
amount of the value of claim and he would then have submitted further
arguments. He also submits that the Federal Constitutional Court did
not consider his arguments and invokes Articles 6 and 8 of the
Convention.
THE LAW
The applicant complains of the denial of legal aid and submits
that he did not have a fair hearing. He invokes Article 6 para. 1
(Art. 6-1) which provides inter alia:
"In the determination of his civil rights and obligations
or of any criminal charge against him, everyone is entitled
to a fair and public hearing... by an independent and
impartial tribunal established by law..."
It is true that according to the decision of the European Court
of Human Rights in the Airey Case Article 6 para. 1 (Art. 6-1)
guarantees to litigants an effective right of access to the courts for
the determination of their "civil rights and obligations". However,
the Court made it clear that it left to the state a free choice of the
means to be used towards this end and furthermore that there was no
obligation on the state to provide free legal aid for every dispute
relating to a "civil right" (see judgment of 9 October 1979, Series A,
Vol. 32, p. 15).
It is self-evident that where a state chooses a "legal aid"
system to provide for access to court, such a system can only operate
effectively, given the limited resources available, by establishing
machinery to select which cases should be legally aided. Such
limitations on the availability of free legal aid, common to most
Convention countries, often require that the proposed litigation have
reasonable prospects of success. Article 6 para. 1 (Art. 6-1) does not
require that legal aid be provided in every case, irrespective of the
nature of the claim and supporting evidence. Where an individual is
refused legal aid in a particular case because his proposed civil claim
is not sufficiently well grounded the burden would then fall on him to
secure his "access to court" in some other way such as, for example,
bringing the action himself or seeking assistance from some other
source.
In the present case, the Commission notes that German courts
carefully examined the applicant's arguments and considered that his
proposed action lacked reasonable prospects of success mainly because
the medical report which the applicant considered to violate his right
to privacy contained nothing that indicated that the applicant was the
patient referred to.
It cannot, in the circumstances of the case, be found that the
denial of legal aid was arbitrary.
Moreover, the applicant, a law student, has not shown that he is
under all circumstances prevented from initiating civil proceedings by
other means.
Consequently it cannot be found that he was denied "access to
court" (cf. No. 8158/78, Dec. 10.6.80, D.R. 21, p. 95 para. 102).
Furthermore, and even assuming that Article 6 (Art. 6) applies
to proceedings relating to the request for legal aid, there is nothing
to show that the applicant did not have adequate possibility for
arguing his case. Finally it cannot be found that the denial of legal
aid in any way amounted to an interference with the applicant's right
under Article 8 (Art. 8) of the Convention.
It follows that his complaint must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the First Chamber Acting President of the
First Chamber
(M.F. BUQUICCHIO) (F. ERMACORA)
Full & Egal Universal Law Academy