Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19913/92

by Johannes PROBST

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 11 January 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 2 June 1991 by

Johannes Probst against Germany and registered on 29 April 1992 under

file No. 19913/92;

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 German citizen born in 1921 and living in

Iserlohn.

He has lodged a previous application (no. 14186/88) complaining

of having been excluded from practising as a medical practitioner

within the social security system, a measure which allegedly deprived

him of all means of existence so that he had to live in a shelter for

the homeless. He alleged violations of Articles 3 and 6 of the

Convention. The application was rejected by the Commission on

7 February 1990 as being manifestly ill-founded.

The present application concerns two distinct complaints, namely,

on the one hand, a complaint about the withdrawal of the applicant's

licence to practise medicine and on the other hand, a complaint about

civil proceedings in which the applicant was the losing party.

I.

As far as the applicant's licence to practise medicine is

concerned an order was given against the applicant by the competent

authority on 14 March 1984 suspending his right to practice as a

medical doctor (Ruhen der Approbation). This measure was taken on the

ground that in view of a disciplinary and criminal conviction and other

incidents, the applicant had shown objectionable behaviour which gave

rise to doubts as to his fitness to exercise the medical profession in

a proper manner. It was added that the applicant had refused to

undergo a psychiatric examination.

On 24 April 1986 the applicant brought an administrative court

action claiming that the order suspending him from medical practice was

null and void. This action was to no avail.

A further action brought on 13 May 1986 with a view to having the

order set aside was likewise dismissed by the Administrative Court

(Verwaltungsgericht) in Arnsberg on 18 June 1986.

The applicant's appeal (Berufung) was rejected by the

Administrative Court of Appeal for North-Rhine-Westfalia

(Oberverwaltungsgericht) on 4 December 1986.

In the meantime on 30 July 1986 the applicant had brought another

administrative court action requesting the Administrative Court to set

aside the order suspending him from medical practice. This action was

rejected by the Administrative Court in Arnsberg on 10 October 1986.

The applicant renewed his requests and by judgment of

27 January 1989 the Administrative Court eventually ordered the

authority to set aside the order suspending the applicant's right to

practice medicine. It is stated in this decision that the new action

which the applicant had introduced on 26 February 1988 was well-

founded. The Court had regard to a medical expert opinion submitted

in criminal proceedings, brought against the applicant, on the question

of the applicant's criminal responsibility. In view of that opinion

the court noted that the applicant had an abnormal personality

structure but there was no indication that he was unfit to practise

medicine for reasons of illness or drug addiction. The suspension

order was therefore, in the court's opinion, no longer justified and

not an adequate measure provided for by the law to prevent the

applicant from exercising the medical profession.

However, on 30 March 1989 the competent authority withdrew the

applicant's licence to practise medecine (Widerruf der Approbation) on

the ground that the applicant was unreliable and untrustworthy to

exercise the medical profession.

The applicant's administrative court action against this order

was rejected by the Arnsberg Administrative Court on 23 February 1990.

Already on 23 May 1989 the court had refused to grant the applicant

injunctive relief by way of a stay of execution of the order

withdrawing his licence. Having regard to the applicant's conviction

by a penal chamber of the Hagen Regional Court on 12 May 1987 and the

above mentioned medical expert opinion submitted in the course of the

criminal proceedings, the Administrative Court found that the applicant

had an abnormal personality structure with a diffuse conception of

reality. He had been in constant conflict with his environment. As

a consequence he had been, inter alia, convicted of fraud committed in

connection with the exercise of his profession. Vis-à-vis the

authorities he had often an aggressive and inflexible, unreasonable

attitude. Furthermore, in spite of his obligation to respect medical

secrecy he threatened two of his patients with turning them in to the

police as drug addicts if they did not pay his fees.

The applicant's appeal (Berufung) was rejected by the

Administrative Court of Appeal of North-Rhine-Westfalia on

17 July 1990. The court refused to grant leave to appeal on points of

law.

The applicant's request to be granted legal aid in order to

request the Federal Administrative Court (Bundesverwaltungsgericht) to

grant him leave to appeal on points of law was rejected by that court

on 21 January 1991.

The applicant then lodged a constitutional complaint against the

decision of 21 January 1991. Inter alia, he complained of the length

of the proceedings.

On 15 April 1991 a group of three judges of the Federal

Constitutional Court (Bundesverfassungsgericht) refused to consider the

merits of this complaint stating that the applicant had failed to

substantiate his petition.

COMPLAINTS

The applicant complains under Articles 3 and 6 of the Convention

that he was not given a fair trial and that the proceedings relating

both to the suspension and the withdrawal of his licence to practise

medicine globally exceeded a reasonable time since they lasted a total

of seven years and four months.

II.

On 30 September 1993 a default judgment was given against the

applicant by the District Court (Amtsgericht) in Iserlohn ordering him

at the request of his landlord to remove an aquarium installed in his

apartment.

The applicant lodged a complaint (Einspruch) against the default

judgment alleging that he was sick and had to be examined in a medical

clinic. He requested that the proceedings be suspended. On

3 November 1993 he was summoned to a hearing of the case on

2 December 1993. It was pointed out in the summons that he had not

shown that he was unfit for the proceedings (verhandlungsunfähig). In

any event he could be represented by any person of age or a lawyer.

On 2 December 1993 his complaint was rejected, again by judgment on

default.

The applicant's request to be granted legal aid in order to

lodge an appeal (Berufung) was rejected by the Hagen Regional Court on

20 January 1994 as offering no prospects of success. The court

considered that the applicant had not shown that there was a justified

reason for his not attending the hearing of 2 December 1993. The court

noted that the applicant had been informed of the date of the hearing

by letter of 6 November 1993. This letter had been served on him

personally. However, he did not react before 30 November 1993. His

letter written on that day reached the lower court on the day of the

hearing. In these particular circumstances the applicant should have

informed himself whether his request would and could still be taken

into account. If not he should have seen to it that he was represented

by proxy as he had been advised to do. He had however not stated any

reason why he omitted to proceed in that manner.

The applicant then lodged a constitutional complaint which was

rejected in accordance with Sections 93 a and 93 b of the Federal

Constitutional Court Act (BVerfGG) on 27 April 1994 by a group of three

judges of the Federal Constitutional Court.

COMPLAINTS

The applicant complains that a default judgment was given against

him. He argues that in view of his illness he did have a valid reason

to request that the proceedings be suspended. He therefore considers

that in these circumstances he was not given a fair trial by an

impartial tribunal and alleges a violation of Article 6 of the

Convention. He invokes in addition Article 3 of the Convention,

pointing out that he is an old and sick person and that the aquarium

is of particular value to him.

THE LAW

I. The applicant has complained that the administrative proceedings

relating first to the suspension and later to the withdrawal of his

licence to practise medicine were unfairly conducted and not terminated

within a reasonable time (Article 6 (Art. 6) of the Convention).

1) However, the Commission notes that the applicant failed to

bring his complaint about the suspension of his licence to the Federal

Administrative Court as well as to the Federal Constitutional Court,

while the constitutional complaint which the applicant lodged against

the decisions given in the administrative proceedings relating to the

withdrawal of his licence was not admitted for a decision on the merits

because it was considered to be unsubstantiated.

It can in these circumstances not be found that the applicant has

exhausted domestic remedies and this part of the application must

therefore be rejected in accordance with Articles 26 and 27 para. 3

(Art. 26, 27-3) of the Convention.

2) So far as the length of the proceedings is concerned the

Commission notes that this matter was mentioned in the applicants

constitutional complaint relating to the proceedings on the withdrawal

of his licence to practise medicine. The Commission therefore accepts

that in this respect domestic remedies were exhausted.

However, the Commission notes that the proceedings here in

question lasted only from March 1989 until April 1991. This period

does not in the circumstances of the present case appear to be

excessive.

The Commission therefore concludes that the present complaint

does not disclose any appearance of a violation of the Convention and

must be rejected as being manifestly ill-founded in accordance with

Article 27 para. 2 (Art. 27-2) of the Convention.

II. Insofar as the applicant complains that in the civil proceedings

a default judgment was given against him although he had informed the

court that he was sick and had an appointment at a medical clinic the

Commission notes that according to the findings of the appellate court

the applicant had failed to give this information on time and also had

failed to show that it had been impossible for him to be represented

by another person.

The Commission cannot in these circumstances find that a fair

hearing by an impartial tribunal was denied to the applicant. There is

consequently no appearance of a violation of Article 6 (Art. 6) or of

other provisions of the Convention invoked by the applicant in this

context. It follows that this part of the application has to be

rejected in accordance with Article 27 para. 2 (Art. 27-2) of the

Convention as beeing manifestly ill-founded.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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PROBST v. GERMANY

PROBST v. GERMANY

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