CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 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 16 October 1986, the following members being present:                         MM. C. A. NØRGAARD, President                           J. A. FROWEIN                           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                           H. VANDENBERGHE                       Mrs G. H. THUNE                       Sir Basil HALL                       Mr. F. MARTINEZ                         Mr. H. C. KRÜGER, 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 17 May 1984 by T.M. against the Netherlands and registered on 18 June 1984 under file No. 10996/84;   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 is a Dutch citizen, born in 1944, a psychologist by profession and at present residing at Haarlem, the Netherlands.   In the proceedings before the Commission he is represented by Mr. L. van Heijningen, a lawyer practising in Amsterdam.   It appears that the applicant fell ill on or about 10 July 1980 and that after a psychiatric examination he was declared 80-100% unfit to work by the competent occupational association (Bedrijfsvereniging) on 10 July 1981.   It further appears that the applicant had taken out an insurance policy concerning his mortgage entered into with a bank in 1978 which provided that remission of outstanding debts would be granted in case of a 65% or more disability preventing him from working.   The applicant was, at his own request, declared bankrupt on 4 January 1983, by the Regional Court (Arrondissementsrechtbank) of Haarlem.   The receiver, in view of the above insurance policy, asked the applicant by letter of 28 February 1983 to submit evidence of his disability, since such evidence was not made available by the occupational association.   On 21 June 1983, the investigating judge (Rechter-Commissaris) ordered the applicant to make an appointment with a psychiatrist in order to undergo a further psychiatric examination in the interest of the settlement of the estate.   The applicant, thereupon, requested the Regional Court of Haarlem to quash this decision of the investigating judge.   However, on 29 July 1983, the court rejected the applicant's request considering, that his objections were more directed against the administration of the estate than against his examination by a psychiatrist.   The court further considered that the applicant had previously indicated that he did not object to a psychiatric examination.   Moreover, the court found that, given the investigating judge's competence to order an expert examination of all circumstances concerning the bankruptcy, and in view of the insurance policy entered into with a bank concerning the applicant's mortgage and covering disability which would prevent him from working (arbeidsongeschiktheid), the examination was in the interest of the estate since it could result in a considerable reduction of the liabilities.   Subsequently, the applicant appealed to the Supreme Court (Hoge Raad), invoking, inter alia, a violation of Article 8 (Art. 8) of the Convention, but his appeal was rejected on 23 December 1983.   According to the Supreme Court, the Dutch Bankruptcy Act (Faillissementswet) could, under certain circumstances, require a bankrupt to co-operate in an examination concerning his person.   The Supreme Court further held that the protection of the interest of a bankrupt's estate could be considered as a protection of the rights of others which in a democratic society justified an interference with the right to respect for private life.   It appears that the bank, however, refused to grant remission of the applicant's debts because of doubts as to the latter's incapacity to work.   The receiver, thereupon, brought proceedings before the Regional Court of Amsterdam which, on 7 November 1984, appointed three experts to assess the applicant's inability to work.   On 5 June 1985, the court appointed a new expert and ordered that the report should be submitted to the court on 2 September 1985.   It appears that the applicant subsequently refused to co-operate in the examination ordered.   COMPLAINTS   The applicant complains that he has been forced to undergo a psychiatric examination in order to determine whether he would be entitled to receive a certain payment under an insurance policy.   He claims that the provisions of the Dutch Bankruptcy Act which require that a bankrupt cooperates in order to settle claims on the estate, cannot require someone to subject himself to a psychiatric examination, constituting an interference with his private life.   The applicant submits that the requirement imposed on him, to undergo a psychiatric examination against his will, is thus contrary to Article 8 (Art. 8) of the Convention.   THE LAW   The applicant has complained that the obligation imposed upon him to undergo a psychiatric examination against his will constituted a violation of Article 8 (Art. 8) of the Convention which reads:   "1.      Everyone has the right to respect for his private and family life, his home and his correspondence.   2.      There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. "   The Commission recalls that a compulsory psychiatric examination must be considered to constitute an interference with the right to respect for private life (cf. Dec. No. 8355/78, 7.5.79, unpublished).   A court order to undergo such an examination must equally be considered to constitute an interference with the right to respect for private life.   However, the Commission finds that the examination ordered in the present case was an interference for which provision is made by Section 66, para. 1 of the Dutch Bankruptcy Act, and which was therefore in accordance with the law.   Moreover, it appears that this provision is intended to enable clarification of all circumstances concerning the bankruptcy and thus pursues a legitimate aim under Article 8 para. 2 (Art. 8-2) of the Convention, viz. the protection of the rights of others, the creditors.   It remains to be examined whether the interference was necessary in a democratic society.   The Commission recalls that "necessary" in this context implies the existence of a pressing social need in the assessment of which a margin of application must be left to the States (cf. eg Eur. Court H.R. Handyside judgment of 7 December 1976, Series A No. 24 para. 48).   The Commission notes that the applicant had entered into a contract of insurance providing that remission of the outstanding debt on his workgage would be granted in case he were to become unable to work for medical reasons.   The Commission is satisfied that this could only be ascertained by a further psychiatric examination. As the psychiatric examination of the applicant could result in a considerable reduction of the liabilities of the estate, it was of decisive importance to the rights of the creditors.   Moreover, the Commission has also had regard to the general interest which exists in ensuring the proper administration of bankrupt estates.   Consequently, the Commission is of the opinion that the Dutch courts could reasonably decide that the interference complained of was proportionate to the legitimate aim pursued.   The interference with the applicant's right to respect for his private life was thus necessary in a democratic society for the protection of the rights of others and therefore justified under para. 2 of Article 8 (Art. 8-2) 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)