Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21279/93

by E.K.

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 31 August 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 24 November 1992

by E.K. against Germany and registered on 27 January 1993 under file

No. 21279/93;

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 1940 and living in

Pattendorf. He is represented by Mr. U. Breitfeld, a lawyer practising

in Munich.

The applicant complains of the proceedings concerning the

withdrawal of his licence to practise as a veterinary surgeon.

It follows from his statements and the documents submitted that

on 11 March 1985 the Government of Lower Bavaria withdrew the

applicant's licence, which had been granted to him on 23 December 1970,

to practice as a veterinary surgeon.

It is stated in the decision that the licence had already been

suspended on 16 April 1981 on account of criminal charges pending

against the applicant. The criminal proceedings had been discontinued

on 17 February 1984, the applicant having consented to pay DM 90,000.

Disciplinary proceedings had been terminated against payment of a fine

in the amount of DM 30,000.

It is further mentioned that the applicant had been convicted on

24 October 1979 of having in 3 cases deliberately violated the law by

providing unauthorised veterinary medicine.

According to the findings of the authorities the licence was

withdrawn in accordance with Section 6 para. 2 of the Federal Act on

Veterinary Surgeons (BTAO) because in view of his behaviour the

applicant was considered to be no longer reliable and worthy to

exercise the profession of a veterinary surgeon. According to the

findings of the authorities the applicant had, even after the

discontinuance of the criminal proceedings which had been laid against

him continued to act in violation of his professional duties. Inter

alia he had continuously violated his obligation to keep a detailed log

of medicine distributed. Also he had given out medicine without prior

examination of the animals concerned and without subsequent control of

the use of the medicine.

On appeal the Government maintained its decision rejecting the

applicant's objections on 29 July 1985.

The applicant then brought an action which was dismissed after

oral proceedings by the Bavarian Administrative Court

(Verwaltungsgericht) in Regensburg on 24 July 1989.

In a detailed judgement comprising 40 pages the court found that

the applicant had violated the regulations concerning private medical

pharmacies (Hausapoteke) and had also violated his obligation to sell

medicine only in connection with a proper medical treatment. Such

treatment necessitated more than visiting stables together with the

animal owner. For example, the applicant had, according to the

evidence obtained, visited on 21 April 1981 at least 17 animal owners.

Taking into account the time necessary to drive from one place to

another and the time needed for managerial tasks it had to be assumed

that there was not enough time left for a thorough examination in all

cases.

The court heard witnesses, W. and Sch., about the applicant's

practice of selling medicine without thoroughly examining the livestock

of the animal owner in question. The court added that it appeared not

to be necessary to hear further witnesses in this respect as it was not

to be expected that contrary to their statements made before the police

the witnesses would exonerate the applicant.

The applicant had furthermore seriously violated professional

duties by smuggling medicine for animals to Austria via the witness,

Z., without knowing for which animals they were destined. Also the

applicant had sold medicine which had not yet been officially

authorised for sale. The applicant had also committed tax evasion.

While his licence was suspended he had nevertheless continued to

exercise his practice.

Finally the applicant had disregarded binding regulations

concerning the storage of medicine intended to keep their properties

unaffected.

In view of all the circumstances the applicant had to be

considered as being unworthy and unreliable.

The applicant lodged an appeal which was rejected by the Bavarian

Administrative Court of Appeal (Bayerischer Verwaltungsgerichtshof)

without an oral hearing on 3 May 1991. In a judgment comprising 53

pages, this court likewise carefully examined the matter and confirmed

the findings of the lower instances.

Leave to appeal on points of law was refused by the Court of

Appeal and also by the Federal Administrative Court

(Bundesverwaltungsgericht) in a decision of 26 May 1992. The latter

court did not consider that the case raised important issues of a

general character.

A constitutional complaint was rejected by a group of 3 judges

of the Federal Constitutional Court (Bundesverfassungsgericht) on

25 August 1992 as offering no prospects of success. It is stated in

the decision that insofar as the applicant alleged a violation of the

right to a fair hearing he had not shown that relevant evidence had

been disregarded by the courts. Furthermore, his arguments did not

disclose any appearance of violation of constitutional rights.

COMPLAINTS

The applicant considers that he was denied a fair trial in the

Administrative Court proceedings. He alleges that the administrative

authorities and the administrative courts considered inter alia the

result of the criminal investigations against him which were contained

in some 30,000 documents. However, as the criminal proceedings against

him were discontinued he had not been able to question the evidence

obtained in the criminal investigation proceedings nor to put questions

to the persons heard as witnesses during these proceedings.

He further complains that the Administrative Court of Appeal

dismissed his appeal finding that his defence was unsubstantiated. He

considered that the Court of Appeal thereby violated the principle of

presumption of innocence. He also complains about the lack of an oral

hearing before the Administrative Court of Appeal

He alleges violations of Articles 6 paras. 1, 2, and 3 (a), (b)

and (d), as well as of Article 7 para. 1 of the Convention.

THE LAW

The applicant alleges a violation of his right to a fair hearing

as guaranteed by Article 6 (Art. 6) of the Convention.

The first issue to be decided is, whether or not these

proceedings involved a determination of the applicant's civil rights

and obligations within the meaning of Article 6 para. 1 (Art. 6-1) of

the Convention.

The Commission recalls the Convention organs' case-law according

to which it is by means of private relationships with patients that

medical practitioners in private practice avail themselves of the right

to continue to practise. It follows that the right to continue to

exercise the medical profession in general is of a civil nature within

the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (see Eur.

Court H.R., Le Compte, Van Leuven and De Meyere judgment of

23 June 1981, Series A no. 43, para. 48, and König judgment of

28 June 1978, Series A no. 27, para. 93).

However, the Commission notes that according to the findings of

the Administrative Court the applicant has in various respects violated

legislative regulations relating to the exercise of his profession.

The court heard witnesses in this respect and did not rely on findings

made by the police in the criminal investigation procedures.

On the other hand the applicant has not shown that vital evidence

offered by him has been disregarded in the Administrative Court

proceedings or that the reasons given by the Administrative Court and

the Administrative Court of Appeal were in any way arbitrary and

incompatible with the evidence obtained in the course of the

proceedings. In this context it has to be noted that the Federal

Constitutional Court also considered the applicant's constitutional

complaint to be unsubstantiated as he had not shown that any relevant

evidence was disregarded by the administrative courts.

The Commission further notes that Article 6 (Art. 6) does not

guarantee an absolute right to an oral hearing before a court of

appeal. In view of the fact that oral proceedings took place before

the Administrative Court, the lack of an oral hearing before the

Administrative Court of Appeal does not, in the circumstances of the

present case, raise an issue under Article 6 (Art. 6) of the Convention.

The Commission concludes that the case does not disclose a

violation of any of the provisions relied on by the applicant.

It follows that the application has to be rejected as being

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

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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E.K. v. GERMANY

E.K. v. GERMANY

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