Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19130/91

by Walter DEMMER

against Austria

The European Commission of Human Rights sitting in private on

28 February 1994, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection of

Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 8 November 1991 by

Walter DEMMER against Austria and registered on 26 November 1991 under

file No. 19130/91;

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

Procedure of the Commission;

Having regard to :

- the Commission's decision of 20 February 1992 to communicate the

application;

- the observations submitted by the respondent Government, after an

extension of the time-limit, on 26 June 1992 and the observations

in reply submitted by the applicant on 29 September 1992 as well as

the Government's supplementary observations of 19 October 1993;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the parties,

may be summarised as follows.

The applicant, born in 1926, is an Austrian national and resident

in Vienna. He is a medical practitioner by profession. Before the

Commission he is represented by Mr. G. Kahlig, a lawyer practising in

Vienna.

A. Particular circumstances of the case

On 26 February 1987 Mr. K., a former patient of the applicant, filed

a complaint about the applicant alleging in particular that the applicant

had examined him in respect of his leukaemia as well as a presumed

parasitical disease of his liver, and advised him to stop his

chemotherapeutics at the local hospital.

On 14 May 1987, in the course of disciplinary proceedings against

the applicant before the Disciplinary Council (Disziplinarrat) of the

Austrian Medical Society (Ärztekammer), Disciplinary Commission

(Disziplinarkommission) for Vienna, Lower Austria and Burgenland,

concerning two accusations relating to his practice, the Disciplinary

Prosecutor (Disziplinaranwalt) at the Disciplinary Commission requested

that these disciplinary proceedings be extended to Mr. K.'s allegations.

Mr. K. was summoned to be heard by one member of the Disciplinary

Commission on 26 May 1987. On 22 May 1987 he informed the Commission

that, due to his bad state of health, he could not come to the premises

of the Medical Society. On 10 June 1987 one member of the Disciplinary

Commission heard Mr. K. as a witness at his home. Mr. K. confirmed his

allegations of 26 February 1987. Mr. K. died on 30 July 1987.

On 13 October 1987 the applicant was summoned for a hearing fixed

for 28 October 1987. He was also informed about the request of the

Disciplinary Prosecutor to extend the proceedings to the disciplinary

charges concerning Mr. K., and he was provided with copies of this

request as well as of the report of Mr. K.'s hearing as a witness on

10 June 1987.

On 28 October 1987 the Disciplinary Commission held a further

hearing. The Disciplinary Prosecutor stated that the disciplinary charges

had been extended to Mr. K.'s allegations in respect of his treatment by

the applicant. The applicant denied the charges against him relating to

Mr. K.

At the next hearing of 13 January 1988, the Disciplinary Commission

heard as a witness the medical practitioner H. who had been in charge of

Mr. K.'s medical treatment at the local hospital.

At the end of the hearing, the Disciplinary Commission found the

applicant guilty of having violated his professional duty to treat his

patients conscientiously under S. 22 para. 1 of the Austrian Medical

Practitioners' Act (Ärztegesetz) in respect of the diagnosis and

treatment of Mr. K.'s diseases in 1987. The Commission referred

particularly to the unconfirmed diagnosis of a parasitical liver disease

as well as a lymphatic vessel and the treatment with "Nosoden" (i.e.

apparently an infusion with a particular sodium chloride solution), as

well as to the applicant's advice to Mr. K. to stop the

chemotherapeutical treatment of his leukaemia. The applicant was also

found guilty of having contravened S. 18 para. 4 of the Medical

Practitioners' Act in that, in the telephone directory, he had indicated

a particular supplement to his profession, and of having contravened

S. 13 para. 3 of the Medical Practitioners' Act in respect of excessive

fees.

Referring to S. 101 paras. 1 and 2 of the Medical Practitioners'

Act, the Disciplinary Commission imposed upon the applicant the

disciplinary penalty (Disziplinarstrafe) of a three months' suspension

and, in accordance with S. 101 para. 3 of the Medical Practitioners' Act,

suspended this penalty on probation for a period of three years.

The Disciplinary Commission based its findings as regards the

treatment of Mr. K. upon Mr. K.'s statements in his complaint of

26 February 1987, as confirmed when examined by one member of the

Disciplinary Commission. The Disciplinary Commission also considered the

testimony of the medical practitioner H. who had confirmed that Mr. K.'s

statements in the said complaint corresponded to the reports which he had

earlier given her about his treatment by the applicant. The Commission

further took a medical expert opinion on the quality of the applicant's

treatment in Mr. K.'s case into account.

The written decision was served on 15 March 1988. On 29 March 1988

the applicant, assisted by Mr. Kahlig, lodged an appeal (Berufung) with

the Disciplinary Chamber (Disziplinarsenat) of the Austrian Medical

Society.

On 10 October 1988 the Disciplinary Chamber of the Austrian Medical

Society, upon the applicant's appeal, quashed the decision of

13 January 1988 so far as it concerned the treatment of Mr. K. and the

penalty. The remainder of the appeal was dismissed.

The decision was served on 13 February 1989.

On 18 October, 8 November and 13 December 1989, the Disciplinary

Commission held hearings and heard in particular the applicant and five

witnesses, namely the medical practitioner H. and a further medical

expert who had examined Mr. K. in February 1987, the member of the

Disciplinary Commission who had questioned Mr. K., Mr. K.'s

life-companion and the applicant's wife.

On 13 December 1989 the Disciplinary Commission again found the

applicant guilty of having contravened the Medical Practitioners' Act in

respect of the diagnosis and treatment of Mr. K. in 1987. Taking into

account the further findings in its decision of 13 January 1988, which

had become final (namely the two other disciplinary offences), the

Disciplinary Commission imposed the penalty of three months' suspension

from practice which was suspended on probation for a period of three

years. The applicant was acquitted of the charge that he had advised

Mr. K. to interrupt the chemotherapeutical treatment of his leukaemia.

The decision was served on 11 October 1990.

On 8 April 1991 the Disciplinary Chamber dismissed the applicant's

appeal against the finding of guilt. Upon his appeal against the penalty,

it was reduced to two months' suspension on probation.

No proceedings to revoke the suspension of the penalty imposed upon

the applicant have been initiated.

B. Relevant domestic law and practice

The professional conduct of medical practitioners is laid down in

the Austrian Medical Practitioners' Act (Ärztegesetz).

S. 95 to S. 102 of this Act regulate disciplinary proceedings

against medical practitioners.

According to S. 95 para. 1, medical practitioners commit a

disciplinary offence if they impair, by their behaviour towards the

community, the patients or the colleagues, the reputation of the Austrian

medical profession, or if they violate their professional duties, which

they promised to fulfil upon their promotion as medical practitioner or

which are laid down in the Medical Practitioners' Act or other legal

provisions.

S. 96 para. 1 provides that the Disciplinary Council

(Disziplinarrat) of the Austrian Medical Society (Ärztekammer) decides

upon disciplinary offences. For each of the different judicial districts

of Courts of Appeal (Oberlandesgerichtssprengel), one Disciplinary

Commission (Disziplinarkommission) was established (S. 96 para. 3).

Pursuant to S. 97, the disciplinary charges are brought by the

Disciplinary Prosecutor (Disziplinaranwalt). S. 98 provides for an appeal

against a disciplinary decision (Erkenntnis) of a Disciplinary

Commission, or a decision not to institute disciplinary proceedings,

which is to be decided by the Disciplinary Chamber (Disziplinarsenat).

S.98 also regulates the appeal proceedings.

According to S. 101 para. 1, disciplinary sanctions are a written

reprimand, fines or suspension from practice. S. 102 para. 2 prescribes

maximum penalties, namely a maximum of a five years' suspension from

practice in case of a disciplinary offence under S. 92 para. 2, or, in

all other cases a maximum suspension of one year, or, in cases of a

person not previously punished, of three months. The fine or the

suspension from practice may be suspended on probation for a period

between one and three years, in particular if the accused had so far only

received a written reprimand (para. 3).

COMPLAINTS

The applicant complains under Article 6 para. 1 of the Convention

about the length of the disciplinary proceedings against him. He also

complains under Article 6 para. 3 (d) of the Convention that he did not

have the opportunity to put questions to Mr. K. He further complains

about the alleged lack of impartiality of the members of the Disciplinary

Commission and the Disciplinary Chamber, respectively.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 8 November 1991 and registered on

26 November 1991.

On 20 February 1992 the Commission decided to communicate the

application to the respondent Government for observations on the

admissibility and merits.

On 26 June 1992, after an extension of the time-limit, the

Government submitted their observations. The observations in reply by the

applicant were submitted on 29 September 1992. In these observations, the

applicant raised a further complaint as to the alleged lack of

impartiality of the disciplinary bodies which had been involved in his

case. The Government submitted supplementary observations on

19 October 1993.

THE LAW

The applicant complains under Article 6 paras. 1 and 3 (d)

(Art. 6-1, 6-3-d) of the Convention about the disciplinary proceedings

which were conducted against him before the Disciplinary Commission of

the Austrian Medical Society, Disciplinary Commission for Vienna, Lower

Austria and Burgenland, and, upon appeal, before the Disciplinary Chamber

of the Austrian Medical Society.

Article 6 (Art. 6), so far as relevant, provides as follows:

"1. In the determination of his civil rights and obligations or of

any criminal charge against him, everyone is entitled to a fair and

public hearing within a reasonable time by an independent and

impartial tribunal established by law. ...

3. Everyone charged with a criminal offence has the following

minimum rights:

...

d. to examine or have examined witnesses against him and

to obtain the attendance and examination of witnesses on his behalf

under the same conditions as witnesses against him; ..."

The Government submit that Article 6 (Art. 6) does not apply to the

disciplinary proceedings in question.

The Government consider that these proceedings did not involve a

determination of a criminal charge against the applicant, or of any of

his civil rights or obligations. Referring to S. 95 of the Medical

Practitioners' Act, they argue in particular that the proceedings at

issue were solely destined to decide upon the professional conduct of

medical practitioners, and the penalties laid down in S. 101 para. 1 were

of a disciplinary nature.

The Government further submit that, as the disciplinary penalty

imposed upon the applicant had been suspended on probation for a period

of three years, there had been no interference with his right to practise

as a medical practitioner. The disciplinary proceedings did not,

therefore, relate to the applicant's civil rights and obligations. In

this context, the Government point out that a revocation of a decision

to suspend a penalty for a probationary period is not provided for by the

Medical Practitioners' Act. No case of revocation was known to them. Even

if the provisions of the Austrian Penal Code regarding the revocation of

the suspension of a sentence were to be applied mutatis mutandis, the

disciplinary penalty could only be revoked in the context of new

disciplinary proceedings.

The applicant submits that, having regard to the range of

disciplinary penalties under the Medical Practitioners' Act, which

included a suspension from practice, the disciplinary proceedings against

him did involve a determination of a criminal charge against him. He

considers that the fact that the relevant provisions of the Medical

Practitioners' Act are only addressed to medical practitioners is not

decisive. He also submits that the suspension of the imposed penalty on

probation has no effect on the seriousness of the sentence. For the same

reasons, he is of the opinion that the disciplinary proceedings against

him at the same time involved a determination of his civil right to

practise as a medical practitioner.

The Commission recalls the Court's case-law according to which the

question whether proceedings relate to the determination of a criminal

charge or are of a disciplinary nature should be examined in the light

of specific criteria, namely the classification of the offence in

domestic law, the nature of the offence and the severity of the sanction

(cf. Eur. Court H.R., Engel and Others judgment, loc. cit.; Öztürk

judgment of 21 February 1984, Series A no. 73, pp. 18-20, paras. 50-53;

Weber judgment of 22 May 1990, Series A no. 177, pp. 17-18, paras. 30-

35).

In the Austrian legal system, the penalty imposed upon the applicant

was based upon S. 95 para. 1 of the Medical Practitioners' Act, which did

not belong to the criminal sphere.

With regard to the nature of the offence, the Commission finds that

S. 95 para. 1 of the Medical Practitioners' Act was designed to ensure

that those exercising the profession of a medical practitioner comply

with the specific rules governing their professional conduct, and did

not, potentially, affect the whole population (cf., mutatis mutandis,

Eur. Court H.R., Weber judgment, loc. cit., p. 18, para. 33). The offence

defined is therefore of a disciplinary nature.

Moreover, the penalty incurred under S. 98 para. 1 of the Austrian

Medical Practitioners' Act, i.e. a written reprimand, a fine or the -

possibly probationary - suspension from practice, is, though important

for the person's professional activity, of a disciplinary nature (cf.,

mutatis mutandis, Appl. No. 8496/79, Dec. 8.10.80, D.R. 21 p. 168; No.

9208/80, Dec. 10.7.81, D.R. 26 p. 262; No. 15965/90, Dec. 15.1.93 - not

yet published).

The disciplinary proceedings against the applicant did not,

therefore, involve the determination of any "criminal charge".

As regards the question whether the Austrian disciplinary

authorities were faced with a dispute over the applicant's "civil rights

and obligations", the Commission recalls that this phrase covers all

proceedings the result of which is decisive for private rights and

obligations. The dispute must be genuine and of a serious nature; civil

rights and obligations must be the object - or one of the objects - of

the dispute and the result of the proceedings must be directly decisive

for such a right (cf., Eur. Court H.R., Le Compte, Van Leuven and De

Meyere judgment, loc. cit., p. 21, para. 47; Benthem judgment of 23

October 1985, Series A no. 97, pp. 14-15, para. 31).

In the case-law of the Convention organs, disciplinary proceedings

which concerned the unconditional disciplinary penalty of an - even

temporary - suspension from practice as a medical practitioner were

regarded as a dispute relating to "civil rights and obligations". The

decisive considerations were that the disciplinary bodies had, at first

instance, ordered temporary suspensions from practice to the effect that

the medical practitioners concerned were temporarily deprived of their

right to practise. That right was, therefore, found to be directly in

issue before the higher instances, which had to examine the

practitioners' complaints against the decisions affecting them. Unlike

certain other disciplinary sanctions that might have been imposed

(warning, censure and reprimand), the suspension at issue in these cases

constituted a direct and material interference with the private right to

continue to exercise the medical profession (Eur. Court H.R., Le Compte,

Van Leuven and De Meyere judgment, loc. cit., pp. 20-22, paras. 45-50;

Albert and Le Compte judgment of 10 February 1983, Series A no. 58,

p. 15, para. 28; Houart v. Belgium, Comm. Report 8.7.86, D.R. 53 p. 5).

Thus, while the disciplinary penalty at stake is a criterion to

distinguish between criminal and disciplinary law, the existence of a

dispute over civil rights or obligations depends upon the nature of the

disciplinary penalty actually imposed.

In the present case, although there was disagreement between the

competent disciplinary bodies of the Austrian Medical Society finding the

applicant guilty of professional misconduct, and the applicant denying

these disciplinary charges, the disciplinary penalty of which the

applicant complains did not, because it was suspended, amount to a direct

and material interference with his right to continue to exercise the

medical profession.

The Disciplinary Commission, in its decision of 13 December 1989,

imposed, as a disciplinary penalty in accordance with S. 101 paras. 1 and

3 of the Medical Practitioners' Act, a three months' suspension from

practice which was suspended on probation. The effect of this decision

was not to deprive the applicant of his right to practise, but he

remained entitled to continue to exercise the medical profession. The

applicant did not suggest that the penalty imposed upon him directly

affected him in his further professional activities. No measures have

been taken to revoke the suspension of the disciplinary penalty imposed

upon him in 1991. Moreover, any revocation of such a suspended penalty

would presuppose a new procedure.

The Commission considers that, in these particular circumstances,

the disciplinary proceedings against the applicant did not, therefore,

involve a determination of his "civil rights and obligations" within the

meaning of Article 6 para. 1 (Art. 6-1).

Consequently, Article 6 (Art. 6) of the Convention does not apply

to the proceedings in question.

It follows that the application is incompatible ratione materiae

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

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NORGAARD)

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DEMMER v. AUSTRIA

DEMMER v. AUSTRIA

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