CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 octobre 1988

.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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 12793/87                       by L.                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 13 October 1988, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   J. CAMPINOS              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   H.C. KRÜGER Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 16 February 1987 by L. against the Federal Republic of Germany and registered on 16 March 1987 under file No. 12793/87;           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, born in 1934, is a German national and resident in Bonn.           In 1981 the applicant, his wife and others, who own apartments in a group of apartment houses, instituted civil proceedings before the Bonn District Court (Amtsgericht) challenging various decisions taken by the assembly of owners under the Freehold Flat Act (Wohnungs- eigentumsgesetz).           On 20 July 1982 the District Court declared two of the decisions null and void and dismissed the remainder of the actions.           Both parties lodged appeals (sofortige Beschwerde) with the Bonn Regional Court (Landgericht) in August 1982.   The appeal proceedings concerning the applicant and his wife were provisionally discontinued in December 1982, because the Court had doubts as regards their capacity to sue (Prozeßfähigkeit).   Their appeals against this decision were unsuccessful.           In December 1983, in the course of criminal proceedings against the applicant, in particular on charges of defamation, the Bonn Regional Court ordered a medical expert opinion on the question of the applicant's criminal responsibility.   Following proceedings to enforce the applicant's examination, the expert delivered her opinion in December 1985.   The criminal proceedings were discontinued by the Regional Court in January 1986.           In July 1984, in the civil proceedings which had been resumed in the meantime, the defendant requested the Bonn Regional Court to appoint a guardian for the applicant and his wife.           On 21 January 1986 the Bonn Regional Court dismissed the actions.   As regards the question of the applicant's capacity to sue, the Court noted that it had examined the files of the criminal proceedings against the applicant and considered the medical expert opinion of December 1985 on the question of his criminal responsibility.   The Court cited the expert's conclusions according to which the applicant was not mentally ill or imbecile or querulous in the psychopathic sense and was, therefore, criminally responsible. Having regard to this medical expert opinion the Court found that there were no doubts concerning the applicant's capacity to sue.           On 3 February 1986 the Bonn Regional Court dismissed the applicant's requests of 29 January 1986 to remove the medical expert opinion of December 1985 from the files concerning the civil proceedings and to remove all references to the expert opinion in the decision of 21 January 1986.   The Court noted that the expert opinion in question had already been sent back to the criminal court. Furthermore the Court found that the reference to the expert opinion had been limited to the positive results and could not, therefore, be considered as degrading.           On 24 April 1986 the Cologne Court of Appeal (Oberlandes- gericht) dismissed the applicant's appeal (Beschwerde).   The Court of Appeal found in particular that the affirmation of his capacity to sue did not prejudice the applicant.           On 13 August 1986 the Federal Constitutional Court (Bundes- verfassungsgericht) refused to admit the applicant's constitutional complaint (Verfassungsbeschwerde).           The Constitutional Court considered that there were doubts as the admissibility of the applicant's constitutional complaint.   The Constitutional Court referred, in this respect, to the facts that the decision on the applicant's capacity to sue was to his advantage, the copy of the medical opinion concerned had in the meantime been sent back to the criminal court and that nobody except the Rapporteur at the Bonn Regional Court had access to the medical opinion.   However it left this question open on the ground that the complaint anyway offered no prospect of success.           The Constitutional Court found that the use as evidence of the medical expert opinion and the reference to it in the Regional Court's judgment did not violate the applicant's rights under the Basic Law (Grundgesetz).   It considered that the Regional Court had under S. 12 of the Code of Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit), which was applicable in the instant case, to establish, ex officio, the applicant's capacity to sue.   It could use as evidence in this respect the medical opinion previously delivered in criminal proceedings against the applicant in order to spare him the strain of a further medical examination.   The Regional Court had thus balanced the conflicting interests of the parties involved and interfered with the applicant's interests as little as possible.   Furthermore, the Constitutional Court considered that the Regional Court had to refer, in its decision, to the results of the medical expert opinion which did not in any way prejudice the applicant.   The information about the previous medical examination did not, as such, degrade the applicant; it was justified by the necessity to determine procedural issues.     COMPLAINTS           The applicant complains under Article 8 para. 1 of the Convention that the Bonn Regional Court used as evidence the medical expert opinion on his criminal responsibility prepared in the context of criminal proceedings against him and that the Court referred to the conclusions of this opinion in its decision of 21 January 1986.           The applicant considers that the Regional Court interfered with his right to respect for his private life.   He alleges that this interference was unlawful under German law on the ground that a party in civil proceedings cannot be forced to have himself examined as regards his capacity to sue.   THE LAW           The applicant complains that the use as evidence in the civil proceedings of a medical opinion as regards his criminal responsibility and the reference to the positive results of this opinion in the Regional Court's decision of 21 January 1986 violate his right to respect for his private life under Article 8 para. 1 (Art. 8-1) of the Convention.           Article 8 para. 1 (Art. 8-1) of the Convention provides that everyone has the right to respect for his private and family life, his home and his correspondence.           The Commission recalls that issues of data protection may come within the scope of Article 8 para. 1 (Art. 8-1) of the Convention (cf. mutatis mutandis, Eur.   Court.   H.R., Leander judgment of 26 March 1987, Series A no. 116, p. 22 para. 48).           In the present case, the Commission notes that the applicant had instituted civil proceedings in the course of which the defendant contested his capacity to sue.   The Regional Court had to consider this issue ex officio.   The Rapporteur at the Bonn Regional Court examined a copy of the medical expert opinion prepared in the context of criminal proceedings according to which the applicant did not suffer from any mental illness, imbecility or psychopathically querulous symptoms.   The copy had in the meantime been sent back to the criminal court.   In its decision of 21 January 1986, the Regional Court only referred to the findings of the medical expert opinion confirming the applicant's capacity to sue.   The Federal Constitutional Court found in particular that the manner in which the Regional Court had established the applicant's capacity to sue was lawful.   It considered that the information about the medical examination did not as such degrade the applicant and that the results of that opinion did not prejudice the applicant.           The Commission considers that, in the circumstances of the present case, the use of the medical expert opinion as evidence and the reference in the Regional Court's judgment to it served the due course of the court proceedings concerned.   The Commission finds that the conduct of the proceedings before the Regional Court, in particular the examination of the medical expert opinion only by the Rapporteur, does not show any lack of respect for the applicant's private life under Article 8 para. 1 (Art. 8.-1) 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)