By Grégor Puppinck, PhD, Director of the ECLJ,
and Miss Andreea Popescu, lawyer.
Strasbourg, September 1st 2011.
The European Court of human rights is called again to decide on assisted suicide in the Koch v. Germany case (application no. 497/09). In this case, the applicant, Mr. Ulrich Koch, complains for the refusal by the German administration to give to his late wife authorization to obtain a lethal substance in order to commit suicide. Assisted suicide is illegal in Germany. He went short after to Switzerland with his late wife, where she committed suicide. In between, the couple introduced a complaint before the German Courts, who ultimately rejected their claims. Before the ECHR, the applicant complains that this refusal violated both of their rights to respect for private and family life as guaranteed by article 8 of the Convention. He also pretends that he lacked effective remedy before national Court, as those courts considered that, following his wife's death, he did not have an ongoing individualised legal interest in having his wife's case examined (article 13).
This case challenging the prohibition of assisted suicide raises serious issues. As to the admissibility: whether or not the applicant can be considered a victim of a violation of a right guaranteed by the Convention in his late wife’s name or in his own. As to the merits, this case raises again the question of the existing of a “right to be assisted to commit suicide” under the Convention, and of the positive obligations of the State in this field.
The Koch case comes only a few months after the Court ruled on the issue of assisted suicide in Haas v. Switzerland, a country having authorized assisted suicide under certain conditions. In the Haas case, the Court ruled that if there can be a kind of individual right to commit suicide under the right to private life; there is no right to “assisted suicide” under the Convention. The State has no positive obligation to legalize assisted suicide or to assist in committing suicide, but is under the obligation to guarantee the right to life (article 2). A referral to the Great Chamber of this Haas case has been rejected by the Court on the 12th of July 2011.
A fortiori, Germany - who contrary to Switzerland doesn’t permit assisted suicide with lethal substances, but tolerates the committing suicide autonomously and assisting of an autonomous suicide - should also not be punished for refusing to assist the applicant late wife to commit suicide. Indeed, the right to private life does not include a “right to death”, before as well as after birth; it would be contrary to the right to life guaranteed under article 2 of the Convention.
In addition, in a recent ruling, the Court asserted that there is no right, under the Convention to have access to specific medical treatment or medication or to free medical care. Therefore, it seems quite impossible to argue that a State would have a positive obligation to provide access to a specific lethal drug.
On the 31st of May 2011, after a public hearing held on the 23rd of November 2010, the former Fifth Section of the ECHR took a first decision declaring the application admissible, without prejudging the merits of the case. It further decided to join to the merits the question of whether the applicant had legal standing to complain about a violation of his late wife’s Convention rights and whether articles 8 (private and family life) and 13 (effective remedy) of the Convention were applicable in this case. The Court has also decided that the case should, in addition, be examined under Article 6 § 1 of the Convention with respect to the right of access to a court.
The Court should rule on the merits of the case in the following months.
When she committed suicide, the applicant's late wife had a life-expectancy of at least fifteen more years, according to the medical assessment. She has been suffering since 2002 from quadriplegia after falling in front of her doorstep. She was almost completely paralyzed and needed artificial ventilation and required constant care and assistance from nursing staff.
She wanted to end her life by committing suicide with the applicant's help, but the Federal Institute for Drugs and Medical Devices (FIDMD) refused to give her authorization to obtain the drug—as such a drug is only granted for life-supporting and life sustaining purposes.
In Germany, committing suicide autonomously or assisting an autonomous suicide is exempt from punishment. Discontinuation of a life-prolonging treatment of a terminally ill patient with the patient‘s consent does not engage criminal responsibility as well. Assisted suicide per se, or euthanasia, is not legal in Germany.
In January 2005, the applicant and his wife contested the lawfulness of the decision of the FIDMD before the national German courts. But, without waiting for the Court decision, they travelled to Zurich in Switzerland and, on the 12th of February 2005, Ms. Koch committed suicide with the “assistance” of the Swiss company Dignitas.
The German courts rejected the claim of the applicant and of his late wife, considering that article 8 of the Convention cannot be interpreted as imposing a positive obligation on the State to facilitate an act of suicide with narcotic drugs which would be inconsistent with the obligation of the State under article 2 of the Convention to protect life. The national courts also considered that the applicant had no victim status, as he could not rely on the posthumous right of his wife to human dignity and as the refusal to grant his wife authorization to obtain the drug did not interfere with his right to the protection of his marriage and family life.
Unpleased by the internal courts decisions, Mr Koch introduced an application before the ECHR in which he complained mainly that the refusal to grant his late wife’s prescription for a lethal dose of pentobarbital of sodium violated both of their rights to respect for private and family life as guaranteed by article 8 of the Convention, “as his wife had been prevented from ending her life within the privacy of their family home.” According to him, article 8 of the Convention “encompassed the right to end one’s own life. The right to life in the sense of article 2 did not contain any obligation to live until the 'natural end'”. Citing article 8 of the Convention, he also argues that the German law would be unclear.
He also pretends that he lacked effective remedy before national Court, as those courts considered that, following his wife's death, he did not have an ongoing individualised legal interest in having his wife's case examined (article 13).
On the 31st of May 2011, after a public hearing held on the 23rd of November 2010, the ormer Fifth Section of the ECHR took a first decision declaring the application admissible, without prejudging the merits of the case. It further decided to join to the merits the question of whether the applicant had legal standing to complain about a violation of his late wife’s Convention rights and whether article 13 (effective remedy) taken in conjunction with article 8 (private and family life) of the Convention were applicable in this case. The Court has also decided that the case should, in addition, be examined under Article 6 § 1 of the Convention with respect to the right of access to a court.
The Court should rule on the merits of the case in the following months.
The Court joint the admissibility issues to the merits, nevertheless we consider that the present application raises questions not only on the merits, but also on the admissibility:
1. Can the applicant enjoy victim status claiming the Convention rights of his late wife or his own?
A person, in order to be able to lodge an application to the Court under article 34 of the Convention, must claim to be the victim of a violation of the rights set forth in the Convention. He should claim to have been actually affected by the violation he alleges. He should be able to show that he has been directly affected by a State measure or omission (“direct victim”). Very exceptionally, the Court admits applications from persons who were indirectly affected by the alleged violation of the Convention (“indirect victim”) or who were susceptible to be affected by facts that could be considered as interference into one of their rights under the Convention (“potential victim”).
In the case of the death of a victim of an alleged violation of a right guaranteed by the Convention during the internal procedures and before lodging an application to the Court, the Court assessed whether the heirs can claim to be victims of the alleged violation. It differentiated between transferable and non-transferable rights guaranteed by the Convention. In the case of transferable rights (such as the right to fair trial and the right to property), the applicants should prove that the alleged violation had a direct effect on their rights or that the leading issue in the case transcends the interests of the applicant and his heirs and as it may affect other persons. In the case on non-transferable rights (such as the right to life), the Court considered that “the next of keen of persons who have died in circumstances giving rise to issues under article 2 of the Convention may apply as applicants in their own right because of the particular situation governed by the nature of the violation alleged and considerations of the effective implementation of one of the most fundamental provision of the Convention system.” Always in the field of non-transferable rights, the Court differentiated between the previous situation and the complaints raised on the basis of the right of freedom of thought, conscience and religion, freedom of expression, length of detention and length of criminal proceedings, right to life, the prohibition of torture, the right to liberty and security, the right to respect for private and family life, the freedom of thought and religion and the prohibition of discrimination, considering that those rights do not fall within the same category, that the applicants were not legally affected and that those rights are closely linked to the person concerned.
In the present case, as to the late wife’s rights under the Convention, it is to be noted that the applicant cannot be considered to be a victim. Even if he took part in the internal proceedings, they had no impact on his legal situation, as the Court considered in the above mentioned cases. Even if he suffered because of the situation of his late wife before her death, he cannot compare it with the situations in which the life of the next-of-kin was taken due to State’s acts or omissions. Moreover, he cannot claim to be a “victim” of the right to personal autonomy of his late wife (article 8 of the Convention), as this right is eminently personal and non transferable, as the internal courts rightly observed and as the Court already decided in the Sanles Sanles case.
As to the applicant’s rights under the Convention, it is to be noted that the applicant was not subject any act or omission of the State, the refusal of the authorization to obtain the drug concerned only his late wife. He cannot claim either that the refusal had an indirect impact on him, as he did not prove that he suffered a distress which went beyond what was inevitable in this situation.
Consequently, he cannot enjoy the status of a direct or indirect victim, as prescribed by article 34 of the Convention.
2. Did the applicant have effective remedy? (art. 13 taken in conjunction with art. 8)
The applicant alleges that the denial to allow him to challenge the Federal Institute’s refusal to grant his late wife the requested authorization infringed his right to an effective remedy.
Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. Notwithstanding the terms of Article 13 read literally, the existence of an actual breach of another provision of the Convention (a “substantive” provision) is not a prerequisite for the application of the Article 13.
Article 13 of the Convention does not guarantee a right to judicial review of (primary) legislation or a right to a favorable decision.
In the instant case, it is to be noted that the applicant challenged only the legality of the refusal decision. Moreover, the internal courts, even if they declared inadmissible the complaint of the applicant, they assessed whether he was claiming a right derived from his right to respect for private and family life and whether there was interference with those rights. The national courts found that there is no right to have the spouses’ marriage terminated by the suicide of one of them or a right to facilitate another person’s suicide from the right to respect for private and family life and that the impugned refusal did not constituted interference in his rights under the Convention. Additionally, the Federal Constitutional Court judged that he could not rely on the posthumous right of his wife to human dignity as the image of the deceased person was not impaired in the eyes of the posterity and as that kind of right is a non-transferable one.
Admitting that the applicant raised before the national courts at least in substance an infringement of his rights under the Convention and assuming that the right to respect for private and family life guarantees a “right to make the decision in conjunction with his wife, according to which there was a prospect that his wife would die as a result of committing assisted suicide in a peaceful and painless manner in their joint home”, as the applicant claims, there was no infringement of his rights due to the “refusal of the Federal Opium Agency which forced him to alter his intention and to organize a journey to Switzerland”, as the applicant had no such right under the German law and as the Convention does not imposes to the States the obligation to allow assisted suicide. It is clear that he was not seeking protection of his rights from the arbitrary intervention of the State, as no aspect of his private or family life, as defined by the Convention, was infringed, but he wanted to institute a positive obligation on the State to allow access to lethal drugs to an individual wishing to end his or her life, which in Germany is forbidden under the Narcotic Act.
Therefore, as they considered that there was no interference with the rights of the applicant under the Convention, the national courts did not pursued in analyzing further the merits of his complaint.
3. Did the applicant have access to a court? (art. 6)
In its admissibility decision on the case, the Court stated that the complaint of the applicant (analyzed previously) might fall to be examined under article 6 of the Convention with respect to the right to access to court.
According to the Court’s case-law, article 6 of the Convention is applicable if one raises an arguable claim (under the internal law) related to his civil rights and obligations. If we could admit that the applicant’s claim has a civil nature, as he invokes individual rights of personal nature, we cannot admit that this could be considered an arguable one, as it has no legal basis in the internal law, Germany forbidding the access to lethal drugs for suicidal purposes (even though committing suicide autonomously and assisting an autonomous suicide is exempt from punishment by the German criminal law).
Therefore, article 6 of the Convention cannot be applicable in this case.
4. Was Germany under the positive obligation to assist Mrs Koch in committing suicide?
The first right proclaimed by the Convention is the right to life (article 2). If it is the first right stated in the Convention, it is because it is the most fundamental right of all: if we are deprived from our right to life, all the other rights become illusory. From this right no derogation is allowed:
“Article 2 ranks as one of the most fundamental provisions in the Convention - indeed one which, in peacetime, admits of no derogation under Article 15. Together with Article 3 of the Convention, it also enshrines one of the basic values of the democratic societies making up the Council of Europe.”
Under this provision, the States have a general obligation to protect human life “by law” and an interdiction to take life intentionally and unlawfully. They are also required to take appropriate steps to safeguard the lives of those within its jurisdiction.
If articles 8 to 11 stipulate that restrictions to those rights should be “prescribed by the law”, article 2 stipulates that the right in itself should be “protected by the law”, which implies that the States are not obliged to incorporate the provisions of the Convention in their internal legal system, but only to justify the restrictions to those rights, meanwhile the right to life should be incorporated as such in the internal legal system.
The right to private and family life (article 8) as guaranteed by the Convention does not include a right to assisted suicide as such. It would impose on States contradictory obligations (to protect life by law and to take life by law in the same time) and create incoherence among the rights guaranteed by the Convention, as it must be read as a whole. Under certain circumstances, the Convention could tolerate assisted suicide under the notion of personal autonomy included in the right to private life when a State decriminalizes it in certain circumstances and under certain conditions.
The present case raise again the question of the existing of a so-called “right to die”, “right to commit suicide” or “right to be assisted to commit suicide” derived from the right to life (article 2) or from the right to respect for private and family life (article 8), as guaranteed by the Convention. Those questions have been answered already in two important cases, Pretty v. UK and Haas v. Switzerland:
- In Pretty v. UK, the Court issued its first judgment on the merits on these questions was. It concerned a woman who was suffering from an incurable and degenerative disease and who wanted to obtain from the internal authorities a guarantee not to prosecute her husband for assisting her to commit suicide. Coming to the Court, she invoked firstly the right to life, claiming that this article protects “not only the right to life, but also the right to choose whether or not to go on living.” The Court, after recalling that “the Court's case-law accords pre-eminence to article 2 as one of the most fundamental provisions of the Convention,” stated that “article 2 cannot, without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die; nor can it create a right to self-determination in the sense of conferring on an individual the entitlement to choose death rather than life. (…) no right to die, whether at the hands of a third person or with the assistance of a public authority, can be derived from article 2 of the Convention” (§§ 39 and 40).
Secondly, the applicant argued that the right to private life implies a right to self determination which would encompass “the right to make decisions about one's body and what happen[s] to it,” “the right to choose when and how to die and that nothing could be more intimately connected to the manner in which a person conducted her life than the manner and timing of her death.” Therefore, the refusal of the authorities to give a guarantee and the State's blanket ban on assisted suicide interfered with her right to private life. Importantly, the Court accepted, for the first time, that the notion of “personal autonomy” derives from the right to private life as guaranteed by article 8 of the Convention: “although no previous case has established as such any right to self determination as being contained in article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees” (§ 61).
Therefore, as judged in Pretty v. UK, there is no right to die or a right to self-determination deriving from the right to life, but that there is a right to personal autonomy deriving from the right to respect for private life. Since then, the Court has continuously extended the scope of article 8 under various aspects of the personal autonomy, such as giving birth within the privacy of family home or having masochist practices.
- In Haas v. Switzerland, the Court ruled recently on an application concerning a man who wanted to have access to a lethal substance without a proper medical prescription in order to commit suicide. He relayed on the right to private life, claiming that his “right” to put an end to his life was not respected, as the access to the lethal substance was submitted by the State to certain conditions which he did not fulfill. The Court rightly observed that the applicant was not seeking recognition of his right to self determination, but to institute a positive obligation on the State to take measures allowing for rapid and painless suicide (§ 53). The Court established that the right to private life includes the right to decide how and when to die, but only under two conditions: the free will of the person concerned and his/her capacity to take appropriate action, in so far as it can be implemented by the person concerned. (§ 51)
- In R.R. v. Poland, another recent case, the Court asserted that there is no right, under the Convention, to have access to free medical care or to specific medical treatment or medication. Therefore, it seems quite impossible to argue that a State would have a positive obligation to facilitate the acquisition or to provide a lethal drug.
Due to the similarities of the Haas and Koch cases, if the Court accepts that the applicant enjoys victim status on behalf of his late wife or of his own, and if it will assess this case under the positive or negative obligations of the State, it should take a similar decision concluding to the non-violation of the rights of the applicant’s late wife and of the applicant under article 8 of the Convention.
Moreover, contrary to Switzerland, Germany doesn’t permit assisted suicide with a lethal substance at all. Whereas Hass could pretend to suffer from an unjustified difference of treatment with other patients who fulfilled the conditions for assisted suicide, Koch cannot, since assisted suicide with a lethal substance is not legal under any circumstances in Germany.
While considering the merits of the case under article 8, the following aspects should also be taken into consideration by the Court:
If the Court considered that Germany had to justify itself for not allowing assisted suicide, it could underline that:
In view of the above mentioned reasons, ECLJ calls the ECHR to reject the alleged violations of the rights guaranteed by the Convention, as, even supposing that the applicant has “victim status” in the name of his late wife or of his own, the refusal of the German authorities to allow access to the lethal substance was “necessary in a democratic society” and “proportionate with the aim pursued”. The first reason allowing this conclusion is that assisted suicide cannot be considered as steaming from the Convention. The Convention cannot be interpreted as encompassing a right to assisted suicide.
The subsidiary reasons are the following: the strong ethical dimension of this issue, the lack of consensus among member States on the matter, the strong defense of the human dignity by the German legal system due to historical reasons, the interest of the society in preserving health, public safety and the prevention of crime and of abuses and also the fact that the late wife of the applicant had access to assisted suicide abroad without any interference from the State and that the applicant did not prove that the travel to Switzerland with his late wife was such as to amount a violation of his right to private and family life.
- Comm, Dec Adler v. Germany, no. 13371/87;
- Comm, Dec Widmer v. Switzerland, no. 20527/92;
- ECHR, Dec Sanles Sanles v. Spain, no. 48335/99;
- ECHR, Dec KOCH v. Germany, no. 497/09;
- ECHR, Haas v. Switzerland, no. 31322/07;
- ECLJ press release Case of Haas v. Switzerland – The ECLJ denies an alleged right to “assisted suicide” opposable to the State;
- ECHR, Pretty v. UK, no. 2346/02;
The European Centre for Law and Justice is an international, Non-Governmental Organization dedicated to the promotion and protection of human rights in Europe and worldwide. The ECLJ holds special Consultative Status before the United Nations/ECOSOC since 2007. The ECLJ engages legal, legislative, and cultural issues by implementing an effective strategy of advocacy, education, and litigation. The ECLJ advocates in particular the protection of religious freedoms and the dignity of the person and life with the European Court of Human Rights and the other mechanisms afforded by the United Nations, the Council of Europe, the European Parliament, the Organization for Security and Cooperation in Europe (OSCE), and others. The ECLJ bases its action on “the spiritual and moral values which are the common heritage of European peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy” (Preamble of the Statute of the Council of Europe).
 Haas v. Switzerland, no. 31322/07, judgment of 20 January 2011;
 A. B. C. v. Ireland [GC], no. 25579/05, judgment of 16 December 2010;
 R.R. v. Poland, no. 27617/04, judgment of 26 May 2011;
 This is the same company which submitted observations to the Court in the case Haas v. Switzerland on the basis of article 36 § 2 of the Convention (third party intervention);
 It is a similar complaint as in the case Ternovszky v. Hungary, no. 67545/09 in which the applicant complained about the “ambiguous legislation on home birth” which “dissuaded health professionals from assisting her when giving birth at home”;
 Ireland v.UK, judgement of 18 January 1978, Series A, no. 25, pp. 90-91, §§ 239-40;
 Sanles Sanles v. Spain, no 48335/99, decision of 26 October 2000, ECHR and 2000-XI, McCann and others v. UK, judgement of 27 September 1995, Series A no. 324;
 Amuur v. France, no. 19776/92, judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, § 36; Fidan v. Tukey, no. 24209/94, decision of 29 February 2000, Yasa v. Turkey, judgment of 2 September 1998, §§ 61-66;
 Dudgeon v. UK, judgment of 22 October 1981, §§ 40-41, Series A no. 45; Marcks v. Belgium, judgment of 13 June 1979, § 27, Series A no. 31;
 Ressegatti v. Switzerland, no. 17671/02, judgment of 13 October 2006, § 25 and Georgia Makri and others v. Greece, no. 5977/03, decision of 24 March 2005;
 Malhous v. Czech Republic, no. 33071/96, decision of 13 December 2000, ECHR 2000-XI;
 Fairfield and others v. UK, no. 24790/04, decision of 8 March 2005;
 Fairfield and others v. UK, no. 24790/04, decision of 8 March 2005;
 Bic and others v. Turkey, no .55955/00, judgment of 2 February 2006 ;
 Sanles, Sanles v. Spain, no. 48335/99, decision of 26 October 2000;
 Kudla v. Poland, no. 30210/96, pp. 238, 239, § 157, ECHR 2000-XI;
 Klass and Others v. Germany, judgment of 6 September 1978, Series A no. 28, p. 29, § 64 and Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, p. 23, § 52;
 Hatton v. UK, no. 36022/97, GC judgment of 8 July 2003, § 138;
 Konti-Arvaniti v. Greece, no. 53401/99, judgment of 10 April 2003, § 28;
 Athanassoglou and others v. Switzerland, [GC], no. 27644/95, § 44; Fayed v. UK, no. judgment of 21 September 1994, § 65; Al-Adsani v. UK [GC], n° 35763/97, §§ 48-49; Fogarty v. UK [GC], no.37112/97, § 25;
 McCann and others v. UK, [GC], no. 18984/91, judgment of 5 September 1995;
 Article 2 of the Convention: “Everyone’s right to life shall be protected by law (...)”
 The exceptions are strictly limited to § 2 of article 2 : “Depravation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
a)In defence of any person from unlawful violence;
b)In order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
c) In action lawfully taken for the purpose of quelling a riot or insurrection.”
 L.C.B. v. UK, judgment of 9 June 1998, § 36;
 right to private and family life, freedom of thought, conscience and religion, freedom of expression and freedom of association;
 James and others v. UK, judgment of 21 February 1986, § 84 and The Greek Saint Monasteries v. Greece, judgment of 9 December 1994, § 90;
 Haas v. Switzerland, no. 31322/07, judgment of 20 January 2011, § 54;
 Pretty v. UK, no. 2346/02, judgment of 29 April 2002;
 Ternovszky v. Hungary, no. 67545/09;
 R.R. v. Poland, no. 27617/04, judgment of 26 May 2011;
 In has to be noted that in Hass v. Switzerland, as the applicant considered that the State had to allow him free access to a lethal drug in order to commit suicide, the Court analyzed the case through the perspective of the positive obligation and, considering different aspects, concluded that in this specific case Switzerland had no such obligation. This means that the question of the positive obligation of the States in this matter in general was left opened (§ 61). As there is no clear cut distinction between the negative obligations of the States and their positive obligations, the same aspects will be taken into consideration by the Court in assessing the necessity and proportionality of the State decision.
 See H. v. Norway, no. 17004/90, Comm dec. of 19 May 1992; L.C.B. v. UK, judgment of 9th of June 1998, Reports of Judgments and Decisions 1998-III, p. 1403, § 36; Pretty v. UK, no. 2346/02, judgment of 29 April 2002, § 38.
 Keegan v. UK, no. 27229/95, § 91 ;
 As the Court recalled in A., B. and C. v. Ireland case: “the acute sensitivity of the moral and ethical issues (…) allows a broad margin of appreciation (…) to the State in determining the question whether a fair balance was struck ” (§ 233);
 Hoffer and Annen v. Germany, no. 397/07 and 2322/07, judgment of 13 January 2011, § 48 in which the Court concluded to the non-violation of the freedom of expression of the applicants who were criminally convicted for stating in a pamphlet “Then: Holocaust/today: Babycaust”, taking into account the impact that that expression of opinion could have in the specific context of the German past.
 Under German law, neither suicide nor aiding and abetting suicide represents an infringement of the law. In A., B. and C. v. Ireland case, the Court found that the prohibition of abortion for health and well-being reasons in Ireland, based on profound moral values of the Irish people concerning the nature of life and the protection of the unborn, did not exceed the margin of appreciation of the State, as the women could legally travel abroad to have an abortion and that they had access to information on the subject and medical care before and after they had an abortion (§ 241)
 Le Matin, « Suicide accompagné : les zones d’ombre des comptes de Dignitas » (Mars 2008) ; Romandie News, Mystérieuses urnes funéraires retrouvées dans le las de Zurich et Le suicide assisté en Suisse.
 R.R. cited above, § 26 and Rommelfanger v. FRG, no. 12242/86, decision of the Commission;