CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 juillet 1997

.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. 35638/97                       by W. M.                       against Germany          The European Commission of Human Rights (First Chamber) sitting in private on 2 July 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              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 19 January 1997 by W.M. against Germany and registered on 16 April 1997 under file No. 35638/97;        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, born in 1941, is a German national and resident in Krefeld. In the proceedings before the Commission, he is represented by Mr. Schultz, a lawyer practising in Cologne.        The facts of the case, as submitted by the applicant, may be summarised as follows.        In 1985 proceedings for the forced sale by auction were brought by a banking institute which concerned real estate owned by the applicant, including a parcel of land with a house occupied by the applicant.        On 4 July 1994 the Krefeld District Court (Amtsgericht) decided that the estate should be sold (Zuschlagsbeschluß) to the banking institute which had made the highest offer.        On 30 November 1995 the Krefeld Regional Court (Landgericht) dismissed the applicant's appeal against the decision of 4 July 1994. However, upon the applicant's petition under S. 765a of the Code of Civil Procedure (Zivilprozeßordnung), it temporarily stayed the execution proceedings.        S. 765a para. 1 of the Code of Civil Procedure provides that, on application by the debtor, the court in execution proceedings may wholly or in part suspend, prohibit or temporarily stay a measure of enforcement, if the measure, after full examination of the creditor's need for protection, is found because of very exceptional circumstances to involve a hardship incompatible with equity.        In its decision, the Regional Court, having regard to a psychiatric expert opinion, found that there was a serious risk of the applicant's committing suicide if he were to be forcibly evicted. According to the expert, the applicant was depressive as a result of his serious financial losses and suffering from an abuse of medicaments. The Regional Court, referring to the case-law of the Federal Constitutional Court (Bundesverfassungsgericht), considered that, in such a situation, the debtor's right to life outweighed the interests of the creditor in pursuing the execution proceedings. In the circumstances of the applicant's case, the Regional Court found a stay of execution for a period of six months appropriate in order to permit the applicant to undergo medical and psychiatric treatment. The applicant was ordered to start such treatment immediately.        On 20 March 1996 the Düsseldorf Court of Appeal (Oberlandesgericht) dismissed both the applicant's and the creditor's appeals.        On 22 May 1996 the Federal Constitutional Court refused to entertain the applicant's constitutional complaint (Verfassungsbeschwerde).        On 19 June 1996 the Krefeld District Court, upon the applicant's request, again temporarily stayed the execution proceedings and ordered the taking of new expert evidence as to the question of the applicant's suicidal tendencies and possible treatment.        On 19 July 1996 the Krefeld District Court dismissed the applicant's request for a further stay of the execution. The District Court noted the findings of the expert according to which the risk of the applicant's committing suicide persisted, while the applicant had not undertaken any steps with a view to a medical treatment of his problems. The District Court considered that the applicant's conduct could not result in a permanent stay of the execution.        On 8 October 1996 the Krefeld Regional Court dismissed the applicant's appeal. The Regional Court found that the risk of suicide was only one element in balancing the debtor's and the creditor's competing interests. While in the present case there still existed a serious risk that the applicant would commit suicide if forcibly evicted, the applicant had failed to undergo a psychiatric treatment which, as confirmed by the expert, was in principle possible if accepted by the applicant. Moreover, the applicant had never paid any compensation for the use of the house, but had only offered such payment for the future. The Regional Court concluded that, having regard to all circumstances, it was evident that the applicant had attempted to obstruct the execution proceedings by all means.        On 20 December 1996 the Federal Constitutional Court refused to entertain the applicant's constitutional complaint. The decision was served upon his counsel on 10 January 1997.     COMPLAINTS        The applicant complains under Article 2 of the Convention that the German court decisions refusing his request for a further stay of the execution proceedings entail a risk of his committing suicide. He refers to the Commission's decision of 13 December 1971 (No. 5207/71, Collection 39, p. 99).     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 29 January 1997.        On 6 February 1997 the President refused the applicant's request for interim measures pursuant to Rule 36 of the Commission's Rules of Procedure.        The application was registered on 16 April 1997.     THE LAW        The applicant complains that German court decisions refusing a further stay of execution proceedings, as a result of which he will be evicted from his place of residence, amount to a violation of Article 2 (Art. 2) of the Convention.        Article 2 (Art. 2) of the Convention provides, inter alia, as follows:        "Everyone's right to life shall be protected by law."        The Commission recalls that this provision imposes on the Contracting States an obligation to take appropriate steps to protect life (cf. No. 9348/81, Dec. 28.2.83, D.R. 32, p. 190; No. 11604/85, Dec. 10.10.86, D.R. 50, p. 259). The Commission has also had regard to its decisions on Application No. 5207/71, concerning complaints under Articles 2 and 3 (Art. 2, 3) of the Convention about the German courts' refusal to order a stay of the forced eviction of an elderly lady. This application, declared admissible in 1971, was later rejected under Article 29 (Art. 29) for abuse of the right of petition as it was merely designed to evade obligations under domestic law (Dec. 1.6.72, Collection 42, p. 85).        In the present case, the competent German courts, having taken medical expert evidence, did grant the applicant's first request for a stay of execution in order to permit him to undergo psychiatric treatment. After expiry of the six-months stay of the execution, the applicant applied for a prolongation. Having again taken expert evidence, the Krefeld District Court dismissed this request. It found that, while a risk of suicide persisted, the applicant had failed to take any steps with a view to his treatment. However, his conduct could not result in a permanent stay of the execution. This decision was confirmed upon appeal by the Krefeld Regional Court, after having carefully balanced the applicant's and the creditor's competing interests. The Regional Court concluded that the applicant had merely attempted to obstruct the forced sale by auction.        In these circumstances, the Commission is satisfied that the German courts examined the applicant's health and conduct with sufficient care. There is no indication that the continuation of the execution proceedings in question would as such amount to a deprivation of the applicant's life or exclude that other appropriate and adequate steps be taken to safeguard his life within the meaning of Article 2 para. 1 (Art. 2-1) of the Convention.        Accordingly, there is no appearance of a breach of the obligations of the German authorities under Article 2 para. 1 (Art. 2-1) 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, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.       M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber