AS TO THE ADMISSIBILITY OF
Application No. 25274/94
by Alban and Hildegard SCHARPF
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 18 October 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the 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 13 July 1994 by
Alban and Hildegard SCHARPF against Germany and registered on
22 September 1994 under file No. 25274/94;
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 facts of the case, as they have been submitted by the
applicants, may be summarised as follows.
The applicants, born in 1958 and 1962, respectively, are German
nationals and resident at Markt-Rettenbach. In the proceedings before
the Commission, they are assisted by Ms. H. Kustermann, president of
an Oberstdorf association.
In 1991 the applicants' daughter, born in wedlock in 1988, fell
ill with leukaemia. Following a first term of chemotherapy, the
applicants decided not to continue the subsequent terms of their
daughter's treatment. In September 1991 the Memmingen District Court
(Amtsgericht), upon the request of the physicians having treated the
applicants' daughter, withdrew the applicants' right to custody to the
extent that the question of their daughter's medical treatment was
concerned, and appointed the Unterallgäu Youth Office (Jugendamt) as
supplementary guardian (Ergänzungspfleger). The applicants' appeal was
to no avail. In October 1991 the District Court ordered the applicants
immediately to hand over their daughter to the supplementary guardian
or to bring her themselves to the hospital in Ulm. In this respect the
District Court had regard to the guardian's submission that the
applicants had disappeared with their daughter. Upon the applicants'
objection, this decision was modified to the effect that they were
ordered to bring their daughter to any appropriate hospital. The
applicants subsequently brought their daughter first to a hospital in
Tübingen and then to a special hospital abroad, and the decisions of
September and October 1991 were set aside in November 1991. Having
returned from abroad, their daughter remained at the applicants' home
under medical surveillance by a paediatrician. The applicants'
daughter died suddenly on 21 July 1993.
On 22 July 1993 the Memmingen District Court ordered that the
body of the applicants' daughter be seized and subjected to a post-
mortem examination. The Court, referring to SS. 94 and 87 of the
German Code of Criminal Procedure (Strafprozeßordnung), noted that the
applicants had objected to a post-mortem examination which was
considered to be necessary in order to determine the cause of their
daughter's death and thereby to determine whether a third person could
be held responsible for her death. The applicants' right to take care
of their deceased daughter (Totensorgerecht) was outweighed by the
public interest in establishing the truth regarding the child's death.
On 23 July 1993 the Memmingen Regional Court dismissed the
applicants' appeal. The Regional Court considered that, in accordance
with the relevant provisions of the Code of Criminal Procedure, the
seizure and post-mortem examination could be ordered in case of doubt
as to whether the death had been caused by negligence. In the present
case, the measures ordered by the District Court were necessary in
order to clarify the precise cause of the child's death as well as to
examine whether criminal negligence was involved. The Regional Court
noted the background of the case and the reporting in the media which
inter alia suggested that the applicants' refusal of medical treatment
had caused the child's death.
The applicants, represented by counsel, thereupon filed a
constitutional complaint (Verfassungsbeschwerde) with the Federal
Constitutional Court (Bundesverfassungsgericht) regarding the court
decisions ordering the seizure and post-mortem examination of their
deceased daughter, and also requested an interim injunction
(einstweilige Anordnung). As the post-mortem examination had already
been carried out before their submissions were received by the
Constitutional Court, the applicants amended their remedies. They then
requested that the Constitutional Court should declare the examination
in question unlawful and, in interim proceedings, order that the report
on the examination be taken in safe-keeping until a decision on the
merits of their constitutional complaint, that the report be destroyed
and the organs of their deceased daughter, which had been removed in
the course of the examination, be transferred immediately to the
applicants' place of residence and not be destroyed or thrown away.
On 27 July 1993 the Federal Constitutional Court dismissed the
applicants' request for the interim injunction on the ground that at
that stage of the proceedings the applicants' constitutional complaint
appeared to be manifestly ill-founded. The Constitutional Court found
that the decisions ordering the seizure and post-mortem examination
could not be objected to under constitutional law. In particular, the
measures in question served the purpose of establishing the cause or
time of death or whether a third person could be held criminally
responsible, and would not, therefore, disregard the deceased person's
dignity. Furthermore, the applicants' right to take care of their
deceased daughter had not been infringed. Such right was limited by
the provisions of the Code of Criminal Procedure on post-mortem
examinations, serving the public interest in detecting and prosecuting
criminal offences having caused the death of a person. The principle
of proportionality was respected as long the authorities acted on the
basis of a suspicion that a criminal offence could have been committed.
The necessity to order such examinations, and carry them out, as soon
as possible in order not to impair the results had to be taken into
account. In the present case, the criminal courts when ordering the
seizure and post-mortem examination of the applicants' deceased
daughter had balanced the applicants' private interests against the
public interest in the prosecution of crime. Their findings that
medical negligence or negligence on the part of the applicants could
not be excluded in the circumstances and that therefore the examination
was necessary to establish the cause of the child's death could not be
objected to.
According to a press communique issued by the Memmingen Public
Prosecutor's Office (Staatsanwaltschaft) in September 1993, the
applicants' daughter had died of leukaemia.
On 4 January 1994 the Federal Constitutional Court refused to
admit the applicants' constitutional complaint. The Constitutional
Court referred to its earlier decision of 27 July 1993. It further
found that having regard to the circumstances of their deceased
daughter's disease and of her medical treatment the order of a post-
mortem examination could not be objected to on the ground that criminal
responsibility regarding the child's death had appeared possible. To
the extent that the applicants complained about the circumstances of
the post-mortem examination, the Constitutional Court observed that
these issues were not covered by the court order but fell within the
responsibility of the surgeons concerned. The applicants' complaint
as to the failure to return all organs of their deceased daughter, the
Court considered that they had failed to show that such organs had been
in fact held back, and that they had anyway failed to exhaust the
ordinary remedies. The decision was served on 19 January 1994.
It appears that the preliminary investigations against the
paediatrician who had been in charge of the deceased child's medical
surveillance were recently discontinued.
COMPLAINTS
The applicants complain that the seizure and post-mortem
examination of their deceased daughter, the circumstances of the
examination and the fact that organs were retained and could not be
buried subjected them to inhuman treatment contrary to Article 3 of the
Convention. In this context, they also refer to the circumstances of
the medical treatment in 1991.
THE LAW
1. The applicants complain about the decision of the Memmingen
District Court of 22 July 1993 ordering the seizure and post-mortem
examination of their deceased daughter, as confirmed by the Memmingen
Regional Court and the Federal Constitutional Court. They also submit
that organs were retained and could not be buried.
The Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention (cf. No. 21283/93, Dec. 5.4.94, D.R. 77, pp. 81, 88 and Eur.
Court H.R., Van de Hurk judgment of 19 April 1994, Series A no. 288,
p. 20, para. 61; Klaas judgment of 22 September 1993, Series A no. 269,
p. 17, para. 29).
The applicants consider that the seizure and post-mortem
examination of their deceased daughter amount to inhuman and degrading
treatment within the meaning of Article 3 (Art. 3) of the Convention.
Article 3 (Art. 3) of the Convention provides that "no one shall
be subjected to torture or to inhuman or degrading treatment or
punishment."
The Commission finds that it is primarily for the domestic
prosecution authorities and courts to decide whether or not, in given
circumstances, there are reasons calling for investigations in the case
of a person's death. In the present case, the impugned court decisions
ordering the seizure and post-mortem examination of the applicants'
deceased daughter were taken against the background of the child's past
suffering from leukaemia, and the events at the time and following her
chemotherapy in 1991. The Federal Constitutional Court, in its
detailed decisions of 27 July 1993 and 4 January 1994, considered that
these decisions could not be objected to under constitutional law. The
Commission observes that the seizure and post-mortem examination of the
applicants' daughter was ordered, in accordance with the relevant
provisions of the German Code of Criminal Procedure, for the purpose
of establishing the cause of her death because there were doubts as to
a possible criminal responsibility on the ground of negligence.
Considering all circumstances, the Commission finds that the court
decisions ordering the measures concerned cannot be regarded as inhuman
or degrading.
Moreover, the applicants' submissions regarding the circumstances
of the post-mortem examination of their deceased daughter, in substance
concern the conduct of the doctors involved in the post-mortem
examination and do not disclose any disregard for their rights by State
authorities.
Accordingly, there is no appearance of a violation of Article 3
(Art. 3) of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. To the extent that the applicants appear to complain about the
events in 1991, the Commission finds that these submissions were not
brought within the time-limit of six months, as required by Article 26
of the Convention. This part of the application must, therefore, be
rejected under Article 27 para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy