Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30406/96

by Otto Herman NYYSSÖNEN

against Finland

The European Commission of Human Rights (First Chamber) sitting

in private on 15 January 1998, the following members being present:

MM N. BRATZA, Acting President

M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 25 September 1995

by Otto Herman NYYSSÖNEN against Finland and registered on 8 March 1996

under file No. 30406/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Finnish citizen, born in 1935. He resides in

Helsinki.

The facts of this case, as submitted by the applicant, may be

summarised as follows.

The applicant is a doctor of medicine, specialising in the

treatment of cancer. Besides the generally acknowledged forms of

treatments, he also uses alternative medical treatments which allegedly

are not widely acknowledged by doctors of medicine.

In 1993 the National Board of Medicolegal Affairs

(terveydenhuollon oikeusturvakeskus, rättsskyddscentralen för

hälsovården), hereinafter called "the Board", received a number of

complaints against the applicant concerning his professional

qualifications. On this basis the Board decided, on 3 November 1993,

to ask the County Administrative Board (lääninhallitus, länsstyrelsen)

of Uusimaa to carry out an investigation into the applicant's medical

conduct and his capability to practise.

In order to inform the applicant of the above measure the Board

requested the police to deliver a letter to that effect to the

applicant. The letter was furthermore a means of informing the

applicant that the investigation was being carried out in order to

decide whether or not to prohibit him from practising. On

31 January 1994 the police returned the letter to the Board as they had

not been able to reach the applicant.

On 23 February 1994 the County Administrative Board tried to

conduct an inspection of the applicant's office but the applicant was

not present. It appears that the report concerning this indicated that

the applicant had left the premises in order to prevent the

examination, something which later turned out to be wrong.

On 31 March 1994 the Board sent a letter to the applicant

informing him that there were reasons to believe that he was unfit to

practise medicine and that the County Administrative Board had been

requested to conduct an investigation to that effect. The applicant was

also informed about the unsuccessful attempts of 23 February 1994 to

examine his office. He was furthermore informed that the Board intended

to prohibit him from practising medicine as long as the matter was

being examined. He was requested to submit his written observations

within two weeks to the Board.

On 12 April 1994 the applicant received the above letter from the

Board. He immediately objected to the intention to prohibit him from

practising his profession. In particular he pointed out that he had not

received any other information, and was therefore unaware of any

complaints against him. He requested the Board to submit a copy of all

the relevant documents. He also complained that he had not been

informed of the intended examination of his office on 23 February 1994.

On 22 April 1994 the applicant submitted his observations to the

Board in which he maintained that the allegations against him were

groundless.

It appears that the Ministry of Social and Health Affairs became

involved. In April the Ministry asked the director of the Board for her

comments. She replied that the applicant's right to practise his

profession had not been withdrawn and that she was otherwise unaware

of the matter as she had disqualified herself in all matters concerning

the applicant.

On 13 May 1994 the Board received an expert opinion it had

ordered from an expert in psychiatry. It appears that it was

unfavourable to the applicant and that it suggested that he should be

requested to undergo a psychiatric examination.

On 24 May 1994 the Board decided to prohibit the applicant from

practising his profession on the ground that he allegedly suffered from

a mental illness. He was furthermore requested to undergo a psychiatric

examination. The prohibition was provisional and it was to last until

the applicant's capability to practise his profession had been finally

determined. It entered into force immediately regardless of an appeal

which would have no suspensive effect. The applicant maintains that he

was not informed of the decision.

It appears that the applicant became aware of the provisional

prohibition due to the fact that his patients were unable to obtain a

refund of expenses related to medicine prescribed by him. On

19 July 1994 the applicant accordingly asked the Board for an

explanation concerning his right to practise medicine.

On 4 August 1994 the Board informed him that he had been

prohibited from practising medicine provisionally. The actual decision

was not, however, enclosed with the letter.

On 16, 25 and 28 August 1994 the applicant requested the Board

to send him the decision and the documents upon which the decision was

based. His requests remained unanswered.

In the summer of 1994 several psychiatric examinations were

carried out at the applicant's own request. The results of these

examinations which became available on 7 September 1994 showed no signs

of mental abnormalities.

On 6 September 1994 the applicant saw the decision and the

documents on which the decision was based as he went to read the

documents in the archive of the District Court of Helsinki

(käräjäoikeus, tingsrätt).

On 13 September 1994 the applicant appealed against the decision

of the Board to the Supreme Administrative Court (korkein hallinto-

oikeus, högsta förvaltningsdomstolen). He complained that the decision

violated his professional rights and that he had not had a fair

hearing. As the Board had not informed him of the decision he

maintained that he had been wrongfully denied his right to appeal and

his right to practise his profession. He stated that the decision was

not based on facts but on theoretical arguments and differences of

opinion concerning the methods of treating cancer. He also noted that

in its decision the Board had requested him to undergo a psychiatric

examination but had not done anything to have this examination carried

out. This violated his right to a fair hearing within a reasonable

time. The applicant also requested the Supreme Administrative Court to

deal urgently with his case as the provisional prohibition to practise

medicine endangered his patients. He finally submitted his observations

on the alleged misconduct the Board had referred to and maintained that

the director of the Board was biased against him and that leaving the

Association of Doctors had caused him difficulties. In addition to

the appeal to the Supreme Administrative Court the applicant also asked

the Chancellor of Justice to annul the decision of Board. On 26 August

1994 he was informed, however, that the Chancellor could not intervene

as the case was pending before the Supreme Administrative Court.

Following the provisional prohibition and while the case was

pending the applicant allegedly lost all his patients and his economic

situation collapsed. On 8 February 1995 his home was sold by a bank at

an auction in order to cover his debts.

On 28 March 1995 the Supreme Administrative Court decided, inter

alia, as follows:

(Translation)

"According to the documents submitted to the Board and to

the County Administrative Board, the professional conduct

of [the applicant] was of a kind that the Board had reason

to consider whether the measure referred to in section 3 of

the Medical Practice Act (laki lääkärintoimen

harjoittamisesta, lag om utövning av läkaryrket) in order

to prevent or restrict him from practising medicine, would

have been justified.

However, [in respect of the individual complaints submitted

against him], the applicant has submitted evidence showing

that sufficient reasons have not been put forward to prove

that he has been guilty of the alleged misconduct.

Therefore, and as the medical statement given on

7 September 1994 shows that according to the clinical

examination and the psychiatric tests made there are no

signs of mental illness which could diminish [the

applicant's] ability to practise medicine, the Supreme

Administrative Court finds that there is no reason to

restrict [the applicant's] medical practice on a

provisional basis or to order him to undergo a medical

examination at the psychiatric ward of a public hospital.

Consequently, and as the Board has not been empowered to

temporarily restrict the applicant's medical practice and

to order him to undergo medical examinations, the Supreme

Administrative Court decides, according to sections 15 and

19 of the Medical Practice Act, to quash the decision of

the National Board of Medicolegal Affairs. ..."

The decision of the Supreme Administrative Court was final and

entered into force immediately.

On 10 April 1995 the Board sent a letter of information to

different pharmacies, the Institute of Social Security and other

authorities which deal with doctors' prescriptions stating that the

applicant's right to practise his medical profession had been returned

to him.

On 31 May 1995 the applicant requested to be informed of the

contents of the Register of Professionals in Health Care (terveyden-

huollon ammattihenkilöiden keskusrekisteri, centralregistret för

hälsovårdpersonal) concerning him. On 16 June 1995 he was informed that

he had been registered as being prohibited from medical practice from

24 May 1994 until 28 March 1995. It does not appear that the applicant

has taken any action pursuant to the Act on Personal Data Files

(henkilörekisterilaki, personregisterlag) in order to have this changed

or amended.

COMPLAINTS

1. Invoking Articles 5 and 8 of the Convention the applicant

complains that he was deprived of his right to liberty and security of

person by the actions of the National Board of Medicolegal Affairs

whereby he was temporarily deprived of his right to practise medicine.

In support thereof the applicant also submits that his financial

situation collapsed, that attempts were made to search his office and

to subject him to a psychiatric examination.

2. The applicant furthermore complains that his right to freedom of

thought has been violated allegedly having been put under pressure by

the Board in order to prevent him from manifesting his thoughts in the

field of alternative medicine. The applicant invokes Article 9 of the

Convention.

3. The applicant also complains that his right to freedom of

expression has been violated as the Board allegedly pressured him

professionally in order to prevent him from imparting information and

ideas about the alternative medical treatment for cancer. The applicant

invokes Article 10 of the Convention.

4. Under Article 13 of the Convention the applicant complains that

he did not have access to an effective remedy as he did not receive

copies of the documents necessary for appealing against the decision

of the Board. Under this provision he also refers to the independence

and impartiality of the courts.

THE LAW

1. The applicant has referred to a number of problems which all stem

from the provisional prohibition to practise as a doctor issued by the

National Board of Medicolegal Affairs. Invoking Articles 5 and 8

(Art. 5, 8) of the Convention the applicant complains that the Board's

decision deprived him of his liberty and security of person.

There is no indication that the applicant has been deprived of

his liberty within the meaning of Article 5 (Art. 5) of the Convention

(cf. No. 24722/94, Dec. 10.4.95, D.R. 81-B, pp. 130-135). This

provision can accordingly not be applied in this case.

Assuming that the temporary prohibition to practise medicine may

have affected the applicant's life so as to fall within the scope of

Article 8 (Art. 8), the Commission first notes that the prohibition was

quashed by the Supreme Administrative Court. Assuming that the

applicant may, after the decision of the Court, still claim to be a

victim within the meaning of Article 25 (Art. 25) of the Convention and

assuming that he has complied with the requirements of Article 26

(Art. 26) of the Convention, the Commission considers that his

complaints do not disclose any appearance of a violation of Article 8

(Art. 8).

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.2. The applicant complains that his right to freedom of

thought has been violated as he has been put under pressure by a public

authority to refrain from manifesting his thoughts as a representative

of alternative medicine practices which are not widely acknowledged by

the medical profession.

The applicant invokes Article 9 (Art. 9) of the Convention which,

in so far as relevant, reads as follows:

"1. Everyone has the right to freedom of thought, ...;

this right includes freedom to change his belief and

freedom, ..., to manifest his ... belief,..."

The Commission is of the opinion that alternative medicine as a

manifestation of medical philosophy falls within the ambit of the right

to freedom of thought and conscience. The applicant has not, however,

submitted any evidence which could lead to the conclusion that he was

prevented from manifesting his belief within the meaning of Article 9

para. 1 (Art. 9-1) of the Convention.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicant also complains that his right to freedom of

expression has been violated as the Board's actions against him were

aimed at preventing him from imparting the information and ideas about

the alternative medical treatment for cancer.

The applicant invokes Article 10 (Art. 10) of the Convention

which, in so far as relevant, reads as follows:

"1. Everyone has the right to freedom of expression. This

right shall include freedom to hold opinions and to receive

and impart information and ideas without interference by

public authority ..."

The Commission recalls that the freedom of expression, enshrined

in paragraph 1 of Article 10 (Art. 10), constitutes one of the

essential foundations of a democratic society and one of the basic

conditions for its progress (cf. Eur. Court HR, Castells v. Spain

judgment of 23 April 1992, Series A no. 236, p. 22, para. 42.). The

Commission notes, however, that the applicant has not submitted any

evidence which could lead to the conclusion that he was prevented from

imparting information concerning the alternative medical treatments or

any other information, as distinct from practising medicine.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

4. The applicant finally complains that he did not have access to

an effective remedy. He also refers to the independence and

impartiality of the courts and invokes Article 13 (Art. 13) of the

Convention which reads:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy

before a national authority notwithstanding that the

violation has been committed by persons acting in an

official capacity."

The Commission recalls that the applicant had the possibility of

bringing his dispute with the National Board of Medicolegal Affairs

before the Supreme Administrative Court for final determination. Even

assuming that the applicant has an arguable claim under any of the

other provision of the Convention and that he can still claim to be a

victim of a violation, the Commission is satisfied that the Supreme

Administrative Court provided an effective remedy within the meaning

of Article 13 (Art. 13) of the Convention. In so far as the applicant

maintains that this court lacked independence or in its decision showed

bias against him the Commission considers that these allegations are

unsubstantiated.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO N. BRATZA

Secretary Acting President

to the First Chamber of the First Chamber

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NYYSSÖNEN v. FINLAND

NYYSSÖNEN v. FINLAND

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