MG v Germany, Communication No 1482/2006, CCPR/C/93/D/1482/2006 (2 September 2008)
The Human Rights Committee has held that a court-ordered medical examination to assess the competency of a party to participate in legal proceedings violated her right to privacy under art 17 of the ICCPR. The order violated the ICCPR because the German court based its decision solely on the author’s procedural conduct and written submissions and did not hear from the author personally before making the order.
The Ellwangan Regional Court, without hearing or seeing the author in person, ordered her to undergo a medical examination to assess her capacity to take part in proceedings. The Court reasoned that her behaviour raised doubts about her capacity to participate in proceedings, particularly that the author:
- despite having legal representation, prepared extensively for the proceedings and made frequent and voluminous submissions to the court without sufficient cause and to the detriment of her health;
- forwarded her submissions to the presiding judges of various superior courts, the Minister for Justice and the European Court of Human Rights which indicated she was under stress and over-estimated the importance of the proceedings; and
- appealed every decision that she considered disadvantageous even where there were no comprehensible reasons for appeal.
The Regional Court considered the order was required to protect the ‘proper functioning of the judiciary’ and the author’s mental health. The Federal Constitutional Court upheld this ruling, but failed to provide reasons.
The author claimed that the order amounted to degrading treatment and unduly interfered with her right to privacy, in violation of arts 7 and 17 of the Covenant. She further claimed that the absence of an oral hearing prior to issuing the order violated her right to a fair trial under art 14(1) of the Covenant.
The author’s claims under arts 7 and 14 of the ICCPR were not sufficiently substantiated, and hence held inadmissible under art 2 of the Optional Protocol.
The Committee observed that to order a person to undergo a non-consensual medical examination interferes with their right to privacy and may amount to an unlawful attack on their honour or reputation under art 17 of the ICCPR. However, the Committee also noted that medical interference is permissible under article 17 if it is:
- provided for by law;
- made in accordance with the provisions, aims and objectives of the Covenant; and
- reasonable in the particular circumstances of the case.
The Committee held that the failure of the court to hear from or see the author in person and to base the decision purely on the author’s procedural conduct and written submissions was unreasonable. The author’s rights under art 17 were violated because the interference with her rights was disproportionate to the end sought, and hence ‘arbitrary’ for the purposes of art 17.
Relevance for the Victorian Charter
The case canvasses the tension between the need to ensure that the judicial process is unhindered by the behaviour of persons who are not competent to act, and the right of individuals not to have their reputation or honour questioned in proceedings to which they are a party. Section 13 of the Victorian Charter also protects a person from having his or her privacy interfered with or reputation attacked. An order for psychological assessment casts doubt on a party’s capacity to act rationally or reasonably, undermining the credibility - and hence reputation - of the party to whom it is directed and the legitimacy of his or her submissions.
Physical evidence may give the court an apprehension of a party’s incapacity to act. However, precisely what is sufficient physical evidence to justify an order for medical examination is unclear. Requiring a court to hear from a person prior to making an order for psychological assessment provides added protection for the party concerned: the Committee has effectively held that the relevant tribunal must witness a demonstration of the relevant person’s psychological capacity to participate in the proceedings before making an order that casts doubt on their credibility, and their rationale for maintaining those proceedings.
The requirement to hear from a party before ordering assessment of his or her competence to act in legal proceedings ensures the cautious application of an order that carries with it legal and evidentiary doubt as to a person’s capacity to participate in proceedings concerning them.
Adrienne Lyle is a member of the Mallesons Stephen Jaques Human Rights Law Group