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The Human Rights Committee,
established under article 28 of the International Covenant on Civil and
Political Rights,
Meeting on 23 July 2008,
Having concluded its consideration of communication No. 1482/2006, submitted
to the Human Rights Committee on behalf of M.G., under the Optional Protocol
to the International Covenant on Civil and Political Rights,
Having taken into account all written information made available to it by
the author of the communication, and the State party,
Adopts the following:
VIEWS UNDER ARTICLE 5, PARAGRAPH 4, OF THE OPTIONAL PROTOCOL
1.1 The author of the communication is Ms. M. G., a German national, born on
28 January 1963. She claims to be a victim of violations by Germany [FN1] of
articles 7, 17 and 14, paragraph 1, of the Covenant. The author is currently
residing in Paraguay. She was represented by counsel, Mr. Alexander H. E.
Morawa, until 15 May 2008, when counsel informed the Committee that he no
longer represented the author in the proceedings before the Committee.
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[FN1] The Covenant and the Optional Protocol to the Covenant entered into
force for Germany on 23 March 1976 and 25 November 1993 respectively.
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1.2 On 18 July 2006, the Secretariat informed the author that the Committee,
through its Special Rapporteur on New Communications, had decided not to
issue a request for interim measures under rule 92 of the Committee's rules
of procedure.
FACTUAL BACKGROUND
2.1 The author's parents divorced in 1981. Subsequently, numerous legal
proceedings involving family law and civil matters were initiated by and
litigated between the author's father, his relatives, and the author.
2.2 In July 2004, three members of the author's family, including her
father, filed lawsuits in the Ellwangen Regional Court, asking for an order
compelling her to cease and desist making certain statements, as well as for
pecuniary damages. On 7 November 2005, the Ellwangen Regional Court, without
hearing or seeing the author in person, ordered a medical examination of the
author to assess whether she was capable of taking part in the legal
proceedings. The Court appointed Professor R. H., a psychiatrist at the
Berlin Charité University Hospital, "to undertake all the examinations he
deems necessary to assess the physical and mental state of health of the
[author]."
2.3 In its order of 7 November 2005, the Court reasoned that the behaviour
of the author in the proceedings including her many very voluminous
submissions to the court raised doubts as to her capacity to take part in
the proceedings, particularly for the following reasons: (1) That, in her
submissions, the author had indicated that the legal proceedings she was
involved in required her to work up to 20 hours per day for preparing briefs
and other documents, and that this had negatively affected, as attested by
medical certificates, her health and her life as a whole; despite these
negative effects and regardless of the fact that she was represented by
counsel she continued to make frequent and voluminous submission without
sufficient cause; (2) that the fact that the author had copied her
submissions to the Berlin Senator for Justice, the presiding judges of the
Berlin Regional Court, the Stuttgart Higher Regional Court and of the
Federal Court, the President of the Federal Constitutional Court, and to the
European Court of Human Rights indicated that she was under stress and
overestimated the importance of the proceedings; and (3) that the author
appealed every single decision that she considered disadvantageous also
where no comprehensible reasons justifying such appeals were apparent.
2.4 On 22 November 2005, the author filed a complaint against the order of
the Ellwangen Regional Court with the Federal Constitutional Court and
requested interim protection. The author was not represented by a lawyer in
these proceedings. The Court rejected the complaint on 21 December 2005,
without stating reasons.
2.5 On 2 December 2005, the author, now legally represented, challenged the
order of the Ellwangen Regional Court in a counter statement, claiming that
there were no objective reasons for ordering a medical examination and
challenging the absence of an oral hearing prior to issuing the order. She
explained that she was involved in numerous lawsuits against members of her
father's family. As she had not been represented by a lawyer during part of
the proceedings, she could not be blamed for writing lengthier and more
frequent letters to explain the context of her lawsuits. She was entitled to
present her case as fully as possible and to contact higher courts and
international bodies. That she had availed herself of remedies should not
lead to such farreaching consequences as an involuntary medical examination.
On 8 December 2005, the Ellwangen Regional Court affirmed its order. It had
not been required to hear the author prior to ordering the medical
examination, as her procedural conduct and her submissions gave rise to
sufficient doubts about her capacity to take part in the proceedings.
2.6 On 2 December 2005, the author challenged the judges of the Ellwangen
Regional Court, who had ordered her medical examination without objective
reasons and without a prior oral hearing, for bias. On 16 January 2006, the
Court, composed of different judges, rejected the challenge, considering
that the decision that an oral hearing of the author, who was domiciled in
Berlin, was unnecessary in the light of the voluminous case file, did not
amount to bias.
2.7 On 22 March 2006, the Stuttgart Higher Regional Court rejected the
author's challenge of the judges of the Ellwangen Regional Court, as the
author's conduct justified the decision to order an expert opinion. The
Court noted that she had pursued her interests with "noticeable vigor" and
that her written submissions contained abusive language. The absence of an
oral hearing prior to ordering the examination did not violate the author's
right to a fair trial, since the Court was required to hear her only before
making its final determination on her capacity to take part in the
proceedings.
2.8 On 6 April 2006, the author filed a complaint against the decisions of
the Stuttgart Higher Regional Court and the Ellwangen Regional Court with
the Federal Constitutional Court, in which she also challenged the absence
of an early oral hearing. The Court rejected the complaint on 27 April 2006,
without giving reasons.
COMPLAINT
3.1 The author claims that the decision ordering her medical examination
amounts to degrading treatment and unduly interferes with her right to
privacy, in violation of articles 7 and 17 of the Covenant; the absence of
an oral hearing prior to issuing the order violated her right to a fair
trial under article 14, paragraph 1, of the Covenant.
3.2 The author recalls that the purpose of article 7 of the Covenant is to
protect the integrity and dignity of the individual from acts that cause
physical pain or mental suffering.FN2 Invoking the jurisprudence of the
European Court of Human Rights, [FN3] she argues that treatment is
considered 'degrading' if it causes feelings of fear, anguish and
inferiority capable of humiliating or debasing the victim. An order to be
examined against one's will offends the victim's dignity and privacy and
places a person, who has never be subjected to a psychiatric assessment, in
a "particularly vulnerable position." [FN4]
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[FN2] General Comment No. 20 (1992): Prohibition of torture or cruel,
inhuman or degrading treatment or punishment (Article 7), at paras. 2 and 5.
FN3 European Court of Human Rights, Kudla v. Poland, judgement of 26 October
2000, Reports 2000-XI, at para. 92; Tyrer v. United Kingdom, judgment of 5
April 1978, Series A, No. 26, at para. 30; Soering v. United Kingdom,
judgement of 7 July 1989, Series A, No. 161, at para. 100.
FN4 Inter-American Commission on Human Rights, Case 11427, Victor Rosario
Congo v. Ecuador, Report 29/99 of 9 March 1999, at para. 54.
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3.3 On article 17, the author submits that an involuntary medical
examination of one's physical and mental state of health constitutes
interference with a person's privacy or integrity. According to the European
Court of Human Rights, "[t]he preservation of mental stability is [...] an
indispensable precondition to effective enjoyment of the right to respect
for private life."[FN5] A compulsory medical examination or treatment is
only permissible if it is "a therapeutic necessity."[FN6]
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[FN5] European Court of Human Rights, Bensaid v. United Kingdom, judgment of
6 February 2001, at para. 47.
[FN6] European Court of Human Rights, Herczegfalvy v. Austria, judgment of
24 September 1992, Series A, No. 244, at para. 82.
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3.4 The author emphasizes that only in exceptional circumstances and for
compelling reasons may a person be subjected to medical or psychiatric
examinations or treatment without his or her explicit consent. As for the
standard of proof, the European Court of Human Rights held that the
necessity of such interference in the public interest must be "convincingly
shown to exist."[FN7]
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[FN7] Ibid.
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3.5 For the author, the reasons given by the Ellwangen Regional Court as to
the necessity of a medical examination were not compelling: (1) While it was
true that she was extremely burdened with the workload related to her
lawsuits, the fact that she attended to them with such energy was
understandable given the financial and other implications of that
litigation. Although the typing required for maintaining her case files had
caused her dizziness, neck pain and eyesight problems, these physical health
problems did not justify presuming that she also suffered from mental
defects. The real reason for the order was probably that the Court itself
was burdened by the litigation between her and her family members. The Court
had sufficient means at its disposal to streamline, channel, or otherwise
restrict the motions and briefs it receives and includes in its case file.
Subjecting her to a compulsory medical examination was an excessive and
unjustifiable measure under article 14, paragraph 1, of the Covenant. (2)
The reason why she had copied her submissions to various higher courts while
her case was still pending was not that she was "stressed". Rather, she
wanted to accelerate proceedings and prepare the submission of a complaint
to international human rights bodies. The European Court of Human Rights had
repeatedly stated that "actual or potential applicants" must not be
subjected to pressure designed to discourage them from submitting an
application. (3) She was entitled to appeal any unfavourable decision. Even
if her extensive use of such appeals may be perceived as an obstacle to the
administration of justice, this did not justify subjecting her to a medical
examination.
3.6 Subsidiarily, the author argues that the adverse effects of a medical
examination on her dignity and her physical and mental integrity exceeded
the purpose of such an examination by far.
3.7 The author submits that the right to an oral hearing is an essential
element of the due process guarantees in article 14, paragraph 1, FN8
especially when a far-reaching order such as involuntary medical examination
is concerned, or when there is an imminent threat to the physical and moral
well-being of the victim. FN9 She concludes that the refusal of the
Ellwangen Regional Court to hear or see her in person prior to ordering her
medical examination, as well as the decisions of the Stuttgart Higher
Regional Court and the Federal Constitutional Court affirming this decision,
violated her right to a fair trial under article 14, paragraph 1.
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[FN8] Human Rights Committee, Communication No. 1015/2001, Perterer v.
Austria, Views adopted on 20 July 2004, at para. 9.3.
[FN9] General Comment No. 20 (1992), at para. 14.
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3.8 The author submits that the same matter is not being, and has not been,
examined under another procedure of international investigation or
settlement, and that she has exhausted all available domestic remedies. 3.9
The author argues that the implementation of the order of a medical
assessment of her capacity to take part in the proceedings would constitute
an irreversible measure within the meaning of the Committee's jurisprudence.
[FN10] She recalls that interim measures of protection may be ordered in the
context of alleged torture or cruel, inhuman or degrading treatment or
punishment within the meaning of article 7 of the Covenant, but also in case
of threatened breaches of the right to privacy, [FN11] and requests the
Committee to ask the State party not to subject her to any non-consensual
medical or psychiatric examination, or the threat thereof, before the
Committee has considered her case.
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[FN10] Communication No. 1086/2002, Weiss v. Austria, Views adopted on 3
April 2003, at para. 7.2.
[FN11] European Court of Human Rights, Application No. 46827/99 and
46951/99, Mamatkuliv and Askarov v. Turkey, judgment of 4 February 2005, at
para. 104.
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ADDITIONAL INFORMATION FROM THE AUTHOR
4.1 On 2 June 2006, the author clarified her request for interim measures,
reiterating that she has never undergone any psychiatric examination or
treatment. In a medical report dated 15 November 2005, her family doctor
confirmed that she has been his patient since 1986 and that "[t]here are no
indications that suggest any psychiatric illness or any psychopathological
irregularity. [...] her thought processes are entirely organized and well
structured."
4.2 The author clarified that the medical examination ordered by the
Ellwangen Regional Court was still pending, but that it would be scheduled
shortly, as the Stuttgart Higher Regional Court had dismissed her appeal on
24 May 2006. The Court had held that "an order to take a certain step in the
process of taking of evidence to determine the capacity to take part in
legal proceedings cannot be reviewed." An appeal could only be filed after
the examination has taken place in order to review the court's assessment of
the expert opinion.
4.3 The author feared the examination because of the unlimited scope of
discretion granted to the expert in the court order.
4.4 The author submits that Section 56 (1) the German Code of Civil
Procedure provides for an ex officio review of the capacity to take part in
legal proceedings. Section 144 (1) authorizes the courts to appoint experts
for that purpose. Under Section 402, the rules governing the testimony of
witnesses also apply to the enforcement of an order for an expert to assess
evidence. The refusal to submit to an order for examination by a
court-appointed expert entails several sanctions: The person refusing to
comply with the order must reimburse any costs caused by such refusal, pay a
fine, and will be arrested if he or she is cannot pay the fine (Section 390
(1)). Upon request by a party, the court must order the arrest of a person
who repeatedly refuses to obey an order (Section 390 (2)). Under Section 390
(b), such arrest is governed by the provisions on the enforcement of civil
judgments. An arrest warrant will be issued in case of failure to comply
with a court order; the person concerned will be arrested by a bailiff
(Section 909). The arrest may be ordered for the duration of the court
proceedings, but not for longer than six months at a time. The statutes of
the federal States provide for compulsory examination and placement measures
in case of (presumed) mental disability. The author concludes that she is at
a risk of being arrested and forcibly transferred to a psychiatric
institution for her examination.
4.5 The author distinguishes between the health effects that she has already
sustained as a result of the court order and the possible effects of the
pending medical examination on her health. Several medical reports confirmed
that she suffers from health problems which are typically caused by anxiety
and stress due to extraordinary life circumstances. She claims that her
symptoms were caused or at least aggravated by the court order. While the
effects of the medical examination on her health could not be predicted with
certainty, it was sufficiently documented that her health situation would be
aggravated and that she would be in imminent danger of physical collapse.
These effects reach the level of "mental suffering" [FN12] covered by
article 7, and unduly interfered with her privacy protected in article 17 of
the Covenant.
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[FN12] General Comment No. 20 (1992), at para. 5.
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STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY
5.1 On 15 August 2006, the State party challenged the admissibility of the
communication, arguing that it constitutes abuse of the right of submission
of communications and that it is inadmissible ratione materiae under article
3 of the Optional Protocol.
5.2 The State party submits that the author failed to inform the Committee
that the order of the Ellwangen Regional Court to determine her capacity to
take part in legal proceedings only concerned the proceedings against
members of her father's family. While the Court had doubts whether she was
able to act rationally in relation to these lawsuits, it explicitly stated
that there were no such doubts concerning her legal capacity in any other
respect. This automatically limited the scope of an expert medical
examination of her physical and mental state of health in compliance with
the order.
5.3 For the State party, the author attempts to create the erroneous
impression that she could be deprived of her liberty for a prolonged time,
since the jurisprudence cited by her refers to cases concerning the
treatment of patients in compulsory detention in psychiatric institutions.
However, the author's commitment to a psychiatric institution, which would
be subject to stringent procedural safeguards such as an explicit judicial
order, was never an issue. The Court had merely ordered an expert opinion on
her capacity to participate in certain legal proceedings. This expert could
easily accomplish the task by means of an interview and by reference to the
case files.
5.4 The State party rejects the author's assertion that the true reason for
the order was the burden that the author's correspondence placed on the
Ellwangen Regional Court. The Court provided a full explanation for its
doubts about the author's capacity to take part in the proceedings against
her family members. Her letters to the court contained serious insults and
even threats to the life and health of judges.
5.5 The State party considers that the judicial order of a medical
examination, issued in accordance with the law, which serves a legitimate
purpose (the proper functioning of the legal system) and is not arbitrary or
otherwise disproportionate, does not raise issues under articles 7 and 17 of
the Covenant. The author was wrong in assuming that medical examinations
against one's will are only permissible in "the overriding interest in
preserving that person's mental state of health." Other legitimate purposes
also existed. The order of the Ellwangen Regional Court was necessary and
justified to protect the proper functioning of the judiciary. It also aimed
at preserving the author's mental state of health; the Court was obliged to
ascertain at every stage of the proceedings that the parties are able to act
rationally in pursuing their rights. The order was proportionate given the
minimal interference with the author's rights. Expert opinions on a person's
capacity to take part in legal proceedings were frequent in all legal
systems.
5.6 Lastly, the State party argues that by ordering an expert opinion to
establish whether the author is mentally able to cope with the proceedings,
the Court exercised a protective function. Rather than violating article 14,
paragraph 1, the order was aimed at securing the preconditions of a fair
trial.
ADDITIONAL INFORMATION FROM THE AUTHOR
6.1 On 19 September 2006, the author's counsel informed the Committee that
her husband had received a letter dated 1 September 2006 from the Election
Office ("Wahlamt") of the District Authority of Berlin Steglitz-Zehlendorf,
advising her that she had been removed from the register of voters following
a notification dated 18 August 2006 from the Berlin Citizens and Public
Order Department ("Landesamt für Bürger- und Ordnungsangelegenheiten") that
she had been removed from the register of residents with effect from 4 May
2006. In the letter of 1 September 2006, the author was informed that her
address had been marked as "unknown" and that "[i]t cannot be ascertained by
the Election Office who initiated the removal from the register of
residents, nor for what reasons." The letter adds that "a clarification of
your registration as a resident can be obtained at any time at any Citizens
Office ["Bürgeramt"] in Berlin." However, on 14 September 2006, the author's
husband was told by the Citizens Office of Berlin-Mitte, where he tried to
have her removal from the register of residents reversed, that nothing could
be done about it removal, since a non-disclosure order had been issued
concerning the author's address at her request.
6.2 The author's counsel, without however claiming a violation of Article 25
of the Covenant, submits that she had been travelling abroad during the past
two months in order to recover from her health problems and that her
temporary absence does not justify the removal from the register of
residents.
STATE PARTY'S OBSERVATIONS ON THE MERITS
7.1 On 16 January 2007, the State party made observations on the merits and
considered the author's claims to be "manifestly ill-founded." It submits
that the relevant provisions of the German Code of Civil Procedure are in
conformity with the Covenant: Section 52 provides that anyone capable of
entering into contracts also has the capacity to take part in civil
proceedings. There are several grounds for lack of such capacity, including
under-age and permanent mental illness. Moreover, a person may lack the
capacity to take part in specific proceedings when these proceedings are
rooted in disputes which are connected to personal problems of the parties
which go beyond the scope of the legal matter at issue. In such cases, if
the party concerned does not already have a guardian or other legal
representative, the court must appoint a special representative. While it is
generally presumed that the parties to civil proceedings have the necessary
legal capacity, the court must, in cases of doubt, ascertain whether such
capacity exists (Section 56). These provisions seek to protect persons
unable to follow the proceedings and in no way violate the right to be
recognized as a person before the law, as they merely set out the conditions
and restrictions on the exercise of civil rights. Far from excluding a party
from the proceedings, they ensure that the person concerned is represented
by someone.
7.2 The State party argues that nothing in the decision of the Ellwangen
Regional Court compelled the author to submit to a psychiatric examination.
While Sections 402 et seq. of the Code of Civil Procedure provided that
experts, similar to witnesses, may be compelled to provide evidence, such
compulsory measures did not apply to persons who were the object of an
expert opinion. The only provision authorizing civil courts to specifically
order a party to submit to an expert examination is Section 144 (1) of the
Code of Civil Procedure. There was no reference to Section 144 in the
decision of the Ellwangen Regional Court, nor was the author "ordered to
undergo" or "to make herself available" for such an examination. The Court
merely ordered "that the defendant's capacity to take part in legal
proceedings is to be clarified by seeking a written expert opinion." Even if
the Court had made an explicit order under Section 144 (1), the author could
not have been compelled to submit to the examination, given the
jurisprudence that "[a] party to the proceedings cannot be compelled to
undergo an examination as to his or her mental state, except in proceedings
for legal incapacitation under Sections 654, 656."
7.3 The State party submits that the only consequence of a refusal by the
author to submit to an examination would be that the expert opinion may be
prepared on the basis of the files, as well as the expert's impression of
the author's conduct in court, and that the Court would be free to interpret
her action in its assessment of her legal capacity to take part in the
proceedings. The consequences of a court finding that the author lacks
capacity to take part in the relevant proceedings would be that the case
against her would be inadmissible, unless a special representative (normally
a lawyer at the seat of the Court) is appointed by the Court on the
plaintiff's request. In that case, the Court would have to inform the author
about any procedural developments and serve any documents on her. The State
party concludes that the author's allegations concerning a compulsory
medical examination of her physical and mental state of health are without
basis, since there is no possibility of her being forced to submit to such
an examination.
7.4 The State party argues that the author's claim under article 14,
paragraph 1, is based on the erroneous assumption that the Ellwangen
Regional Court had ordered her to submit to an involuntary medical
examination of her physical and mental state of health without having heard
her in person, whereas the Court never issued such a far-reaching order.
While the Court would be required to evaluate the expert opinion in a
hearing, providing the author with an opportunity to make submissions and
challenge the opinion, this stage has not been reached in the proceedings.
ADDITIONAL INFORMATION AND AUTHOR'S COMMENTS
8.1 On 10 February 2007, the author informed the Committee that, on 6
December 2006, the Ellwangen Regional Court had sent a letter to Professor
R. H. of the Charité Hospital in Berlin, instructing him to prepare an
expert opinion on her physical and mental state of health, summon her to the
hospital, and allow the opposing party to attend the examination. By fax of
29 December 2006 sent to the Ellwangen Regional Court, she objected to the
letter. The letter had been copied to the opposing party but not to her, and
she had only received it by coincidence. On 4 January 2007, Professor R. H.
informed the Court that his practice was to prepare expert opinions together
with an assistant and that he would ask another colleague to prepare a
psychological expert opinion, if necessary. These services would be charged
extra, even though the various opinions would be incorporated into the main
expert opinion. He would keep the Court informed about the dates of the
examination and whether the author had complied with the summons. On 8
January 2007, the Court rejected the author's objection, as it had not been
submitted by a lawyer and because the law did not provide for complaints
against decisions to appoint an expert. In a letter dated 13 January 2007,
Professor R. H. suggested three possible dates for the examination. On 20
January 2007, the author's husband replied that she could not come to the
hospital on any of the suggested days, since she was travelling in South
America and could not be reached. He requested that the appointments be
cancelled.
8.2 On 26 April 2007, the author commented on the State party's observations
and denies an abuse of the right of submission on her part. She argues that
she has neither submitted "entirely unsupported [...] allegations", [FN13]
nor shown gross disregard for the Committee, e.g. by deliberately changing
essential facts. Her allegation that the scope of the medical examination
was left entirely to the discretion of the expert was not "wrong and
misleading", but was corroborated by the absence of any limitations in the
court order and by the fact that, in his letter of 13 January 2007,
Professor R. H. had summoned her for a thorough examination and asked her to
"prepare herself for further examination appointments [...] which may have
to be arranged." Rather than "insinuating" that she would be deprived of her
liberty "for a prolonged time", she feared that her physical liberty would
be restricted during a non-voluntary examination. Even without that element,
her rights to dignity and privacy would be infringed.
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[FN13] The author refers to the Committee's jurisprudence in J. J. C. v.
Canada, A/47/40, Supplement, at p. 381 and M. A. B., W. A. T. and J.-A. Y.
T. v. Canada, A/49/40, Supplement, at p. 368.
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8.3 On the merits, the author argues that, in practice, it does not make a
difference whether a court order to submit to a medical examination is
directly addressed to the individual concerned or whether it is directed at
a third person who is to subject the individual to said examination. The
distinction made by the State party as to the addressee of the order was
artificial, since the Ellwangen Regional Court had instructed the expert to
"undertake all the examinations he deems necessary [...]." Based on this
authority, the expert summoned her to the medical examination of her
physical and mental state of health. Professor R. H. acted as an agent of
the State party. Both the general mandate of court-appointed experts, who
often determine the outcome of a case, as well as the scope of power given
to R. H., grants him broad discretion, without providing for "the legal
safeguards against arbitrary application" of the expert's mandate required
by article 17 of the Covenant. [FN14]
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[FN14] Communication No. 27/1978, Pinkney v. Canada, Views adopted on 29
October 1981, at para. 34.
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8.4 The author disagrees that her refusal to submit to the examination would
not lead to any significant negative consequences. Having to choose between
the options of either submitting to the examination, or refusing to do so
and letting the expert decide on the basis of the case file, with the risk
of being found mentally incapacitated in absentia, amounted to coercion. The
contention of the State party that the appointed expert could easily
accomplish his task by means of an interview and by reference to the case
file was refuted by R. H.'s summons for a thorough examination.
8.5 While acknowledging that an ex officio review under Section 56 of the
Code of Civil Procedure of the capacity to take part in legal proceedings
may serve the protection of persons who are potentially unable to follow the
proceedings and to conduct their case, the author reiterates that none of
the reasons given by the court would suffice, either alone or cumulatively,
as a justification for ordering her medical examination. The State party's
argument that she submitted "confused" or insulting or threatening
statements casting doubt on her "ability to act rationally in the context of
these proceedings" is an ex post facto attempt to explain why the Ellwangen
Regional Court ordered the examination.
8.6 The author submits that subjecting her to an involuntary medical
examination was a disproportionate measure given the social stigma attached
to being found mentally incapacitated, albeit in the limited context of a
single trial. In the absence of any compelling reasons for the court order,
the order was arbitrary and unlawful under article 17.
8.7 With regard to her claim under article 7, the author submits that having
to choose between obeying expert's summons or, alternatively, having her
capacity to take part in the proceedings examined in absentia, resulted in
"feelings of fear, anguish and inferiority capable of humiliating and
debasing [her]." [FN15]
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[FN15] European Court of Human Rights, Kudla v. Poland, judgment of 26
October 2000, Reports 2000-XI, at para. 92.
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8.8 She argues that the interference with her rights to privacy and dignity
had such farreaching effects on the underlying civil case, that article 14,
paragraph 1, would have required an oral hearing prior to ordering the
examination, especially since the broad scope of discretion granted to the
expert compromised her position to assert her rights. The fact that there
would be a main hearing before deciding on her capacity to take part in the
proceedings could not cure the absence of a hearing at an early stage where
she still could assert her right not to be subjected to an examination.
8.9 Also under article 14, paragraph 1, the author submits that her right to
an impartial tribunal has been violated. While ordering an expert opinion on
her capacity to take part in the proceedings without having heard or seen
her, the Ellwangen Regional Court did not order a similar expert opinion
with regard to the other parties to the proceedings, despite the fact that
her father had threatened her and her siblings' life, resulting in the
termination of his visiting rights. The author provides documents which, in
her opinion, constitute prima facie evidence questioning her father's
capacity to take part in the proceedings. By ordering an examination of only
her mental state, the Ellwangen Regional Court had acted in a way that
showed bias against her and promoted the interests of one of the parties.
8.10 On 28 April 2008, the author submitted copies of the expert opinion
dated 6 December 2007 prepared by Professor R. H. and his assistant Dr. S.
R. on the basis of the case file and other documents, concluding that the
author should be considered to be incapable of taking part in the legal
proceedings initiated by her father and other family members against her.
8.11 On 6 May 2008, the author submitted a copy of her summons for an oral
hearing scheduled for 8 May 2008 at the Ellwangen Regional Court.
8.12 On 21 May 2008, the author informed the Committee that she had
challenged the judges of the Ellwangen Regional Court to whom her case had
been reassigned, for bias.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
9.1 Before considering any claims contained in a communication, the Human
Rights Committee must, in accordance with article 93 of its rules of
procedure, decide whether or not it is admissible under the Optional
Protocol to the Covenant.
9.2 With regard to the author's claim under article 7, the Committee recalls
that this article seeks to protect both the dignity and the physical and
mental integrity of the individual. [FN16] The assessment of what
constitutes inhuman or degrading treatment within the meaning of article 7
depends on all the circumstances of the case, including the duration and
manner of the treatment, its physical or mental effects, as well as the sex,
age and mental health of the victim. [FN17] The object of the treatment may
also be relevant. The Committee has taken note of the author's arguments
concerning the possible effects of a medical examination on her physical and
mental health. The Committee notes that the author has been invited to
submit to an expert examination for the purposes of judicial proceedings, in
respect of which her mental condition is a pertinent factor. It considers
that the author has failed to substantiate, for purposes of admissibility,
that such an invitation by itself raises issues under article 7 or that the
undoubted suffering imposed on her by the decision so to invite her is of a
nature to fall within the scope of article 7. It follows that this part of
the communication is inadmissible under article 2 of the Optional Protocol.
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[FN16] General Comment No. 20 (1992), para. 2.
FN17 Communication No. 265/1987, Vuolanne v. Finland, Views adopted on 7
April 1989, at para. 9.2.
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9.3 With regard to the author's claim that her right under article 14,
paragraph 1, to an impartial tribunal was violated, since the Ellwangen
Regional Court ordered only her, but not her father, to submit to a medical
examination, despite prima facie evidence that her father lacked capacity to
take part in the proceedings, the Committee notes that the order of the
Court was issued in response to an application by the author for legal aid,
i.e. regarding exclusively her own position in the proceedings and not that
of her father. The Committee considers that the author has not sufficiently
substantiated this claim, for purposes of admissibility and declares this
part of the communication inadmissible under article 2 of the Optional
Protocol.
9.4 As regards the author's claims under article 17 of the Covenant, as well
as the alleged violation of her right to an oral hearing under article 14,
paragraph 1, the Committee has ascertained, and the State party has not
challenged, that the author exhausted domestic remedies. The Committee also
considers that the author has substantiated those claims, for purposes of
admissibility, and concludes that this part of the communication is
admissible under articles 2 and 5, paragraph 2 (b), of the Optional
Protocol.
CONSIDERATION OF THE MERITS
10.1 As regards the author's claim under article 17 of the Covenant, the
Committee observes that to subject a person to an order to undergo medical
treatment or examination without the consent or against the will of that
person constitutes an interference with privacy, and may amount to an
unlawful attack on his or her honour and reputation.[FN18] The issue before
the Committee is therefore whether the interference with the author's
privacy was arbitrary or unlawful, or whether the order of the Ellwangen
Regional Court constituted an unlawful attack against her honour or
reputation. For an interference to be permissible under article 17, it must
cumulatively meet several conditions, i.e. it must be provided for by law,
be in accordance with the provisions, aims and objectives of the Covenant,
and be reasonable in the particular circumstances of the case.[FN19]
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[FN18] Cf. Communication No. 242/1987, Tshisekedi wa Mulumba v. Zaire, Views
adopted on 2 November 1989, at paras. 12.7 and 13.
[FN19] See Communication No. 903/1999, Van Hulst v. The Netherlands, Views
adopted on 1 November 2004, at para. 7.3.
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10.2 The Committee recalls that the order of the Ellwangen Regional Court to
examine the author's capacity to take part in the proceedings was based on
Section 56 of the German Code of Civil Procedure. It notes the reasons given
by the Ellwangen Regional Court for ordering a medical examination of the
author, i.e. her excessive written submissions and appeals and all the work
she had put into the case affecting her health, as well as the State party's
argument that the order served the legitimate purpose of protecting the
'proper functioning of the judiciary' and the author's mental state of
health. However, the Committee observes that the order of the Ellwangen
Regional Court had the effect of requiring the author to undergo a medical
examination of her physical and mental state of health, or alternatively
Professor R. H. would prepare the expert opinion solely on the basis of the
existing case file. It considers that to issue such an order without having
heard or seen the author in person and to base this decision merely on her
procedural conduct and written court submissions was not reasonable in the
particular circumstances of the case. The Committee therefore finds that the
interference with the author's privacy and her honour and reputation was
disproportionate to the end sought and therefore 'arbitrary', and concludes
that her rights under article 17, in conjunction with article 14, paragraph
1, of the Covenant have been violated.
11. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the facts before it disclose a violation of the
author's rights under article 17, in conjunction with article 14, paragraph
1, of the Covenant.
12. In accordance with article 2, paragraph 3 (a), of the Covenant, the
State party is under an obligation to provide the author with an effective
remedy including compensation. The State party is also under an obligation
to prevent similar violations in the future.
13. Bearing in mind that, by becoming a party to the Optional Protocol, the
State party has recognized the competence of the Committee to determine
whether there has been a violation of the Covenant or not and that, pursuant
to article 2 of the Covenant, the State party has undertaken to ensure to
all individuals within its territory or subject to its jurisdiction the
rights recognized in the Covenant and to provide an effective and
enforceable remedy in case a violation has been established, the Committee
wishes to receive from the State party, within 180 days, information about
the measures taken to give effect to the Committee's Views. The State party
is also requested to publish the Committee's Views.
[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]
APPENDIX
INDIVIDUAL OPINION OF COMMITTEE MEMBER MR. IVAN SHEARER (DISSENTING)
I regret that I am unable to join the majority of my colleagues in finding a
violation in the present case. I cannot regard the action of the Ellwangen
Regional Court in ordering an examination of the author prior to the oral
hearing of the case to be unreasonable in all the circumstances. There was a
justifiable apprehension by the Court that the author might not be capable
of acting in her own best interests. It seems to me only reasonable that the
author's state of health should have been examined, and reported on, before
the oral proceedings began. The report would not have been conclusive: the
Court was competent to decide that the author was fully competent to proceed
with her action. On the other hand, were it to have been, as the author
wished, that these matters be determined only at the oral hearing stage,
without a prior examination and report, much valuable court hearing time
might be lost if the Court was then forced to delay the proceedings by
reason of a finding at that stage that the author was not competent to act
on her own behalf.
[signed] Mr. Ivan Shearer
[Done in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]
INDIVIDUAL OPINION OF COMMITTEE MEMBER MS. RUTH WEDGWOOD (DISSENTING)
Though the pleadings in this case are not a model of clarity, it appears
that a German Regional Court, located in the town of Ellwangen, in the state
of Baden-Wurttemberg, Germany, concluded that it had a legal responsibility
to examine whether the author, described here as "M.G.", was competent to
defend herself in a civil lawsuit brought by three family members against
her. The suit asked for damages and injunctive relief against the author.
Under German law, if the author was not competent to protect her own
interests, a legal representative could be appointed for her.
The pleadings before the Committee do not make clear whether this
representative would be tasked simply to act as an attorney in the regional
court proceedings (instead of perhaps permitting M.G. to defend the case pro
se, without an attorney), or instead to act more broadly as a legal guardian
to advise or decide what was in the author's best interests in the case.
But in either event, there were rather evident grounds for apprehension on
the part of the Ellwangen Regional Court concerning the capacity of the
author to defend herself in a civil suit. A letter sent by the author to the
presiding judge of the Ellwangen District Court, for example, contains
highly abusive and threatening language directed at the presiding judge.
This letter might afford any reasonable judge concern about the capacity of
the author to function as her own attorney and indeed, as guardian of her
own interests, as well as the appropriate procedures for carrying out an
orderly trial.
The question now put to the Committee by the author is whether the State
Party has violated the Covenant because the Regional Court attempted to
engage an expert to give an opinion on the author's "physical and
psychological state of health," before affording the author an oral hearing
at which she could dispute the necessity for doing so. The expert assessment
has never been carried out, not least, because the author left the country
and went travelling in South America at the time of the proposed dates.
But in any event, the examination was not mandatory. Rather, if the author
preferred not to have an examination, the court was willing to base a
preliminary evaluation of her capacity to proceed in light of the pleadings
contained in the case file. It is thus hard to see what basis remains for
the author's claim that the request by the court to cooperate in a
psychological examination constituted an unlawful invasion of her privacy or
arbitrary attack on her honour or reputation, actionable under Article 17 of
the International Covenant on Civil and Political Rights.
A court has an independent right and responsibility to protect the integrity
of its proceedings, and to assure that the litigants before it have
competent representation. The author does not dispute that she was also
assured of a full hearing before the court before there was to be any final
and dispositive determination of her competence to act on her own behalf.
There is nothing in the case that suggests the court was acting for any
other reason than its interest in orderly and just proceedings. Against the
background of the abusive written filings noted above, it would seem
tendentious to require a judge to gather additional "personal impressions"
of a litigant, before even seeking a psychological examination that itself
was a voluntary choice for the author. Hence, I cannot join in the finding
of a violation by the State Party in this case.
[signed] Ms. Ruth Wedgwood
[Done in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]
Made public by decision of the Human Rights Committee. |
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