CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 octobre 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial } 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)