Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21682/93

by Siv and Per WESTERBERG

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 30 June 1993, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

Mr. K. ROGGE, Secretary to the Second 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 3 April 1993 by

Siv and Per WESTERGERG against Sweden and registered on 19 April 1993

under file No. 21682/93;

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 first applicant, Per Westerberg, born in 1917, is a medical

practitioner. The second applicant, Siv Westerberg, his wife, born in

1932, is a lawyer. They are both Swedish citizens and reside in

Gothenburg. The first applicant is represented before the Commission

by the second applicant.

The applicants have described the background to their present

complaint in the following terms :

Per Westerberg has been practising medicine for many years. Siv

Westerberg also practised medicine until 1979 when, as a result of a

conflict with the Social Insurance Board (Försäkringskassan) of

Gothenburg, her licence to practise medicine was withdrawn. She then

studied law and, after having obtained a law degree, started practising

as a lawyer.

As a lawyer, Siv Westerberg dealt in particular with cases of

abuse of power against individuals, including cases of forced taking

into care of children which sometimes ended up before the Convention

organs in Strasbourg. Siv Westerberg's activities were disliked by the

Swedish authorities which in different ways tried to cause difficulties

for her. When they were not very successful in these attempts, they

found that the best way would be to harm her husband, Per Westerberg.

Many of Per Westerberg's patients had been engaged in heavy

industrial work which had caused physical injuries, and Per Westerberg

therefore, in many such cases, ordered sick leave in order for them to

recover. This caused a conflict with the Social Insurance Board of

Gothenburg which was reluctant to pay sickness benefits to his patients

and took contact with the National Board of Health and Welfare

(Socialstyrelsen) in order to complain of the liberal way in which Per

Westerberg considered his patients entitled to sick leave.

In December 1987 two doctors were sent by the National Board of

Health and Welfare to inspect Per Westerberg's medical practice and to

have copies made of certain medical files which could be further

studied. Some of these files were then analysed by a doctor who had

less competence than Per Westerberg and who, without visiting Per

Westerberg and seeing any of the patients concerned, formulated general

criticism of his work.

Ten months later the National Board of Health and Welfare

referred the matter to the Disciplinary Board for Medical Staff (Hälso-

och sjukvårdens ansvarsnämnd). Before this, Per Westerberg had not been

given the opportunity of reading and commenting on the findings in the

National Board of Health and Welfare's Report.

The Disciplinary Board communicated the relevant documents to Per

Westerberg, who in his observations to the Board contested that he was

guilty of any irregularities in the way he dealt with his patients.

The Disciplinary Board then asked another doctor to submit his

comments on the case. That doctor was married to the former Director

General of the National Board of Health and Welfare and could

therefore, in the applicants' opinion, not be considered impartial. On

the basis of that doctor's report the Disciplinary Board decided, on

3 April 1991, to impose on Per Westerberg the disciplinary sanction of

a warning.

Per Westerberg appealed to the Administrative Court of Appeal

(kammarrätten) of Stockholm which, on 11 December 1991, rejected the

appeal. The Supreme Administrative Court (Regeringsrätten) refused

leave to appeal on 23 November 1992.

COMPLAINTS

The first applicant, Per Westerberg, complains of violations of

(a) Article 4 para. 2 of the Convention in that the State tries to

force him to be the "State's representative" in his relations with his

patients and thereby to perform compulsory labour on behalf of the

State,

(b) Article 6 of the Convention in that his right to exercise his

profession in a correct and ethical manner, and thereby his civil

rights, has been violated,

(c) Article 6 of the Convention in that he has not had an impartial

trial, in that he has been innocently convicted contrary to Swedish

law, and in that he has not had a trial within a reasonable time,

(d) Article 6 of the Convention in that he was not given the

opportunity to comment on the charges brought against him by the

National Board of Health and Welfare before that Board referred his

case to the Disciplinary Board and in that the decision to refer his

case to that Board was not communicated to him,

(e) Article 6 of the Convention in that the real reason for the

charges against him was the desire of the authorities to harm his wife

Siv Westerberg,

(f) Article 9 of the Convention in that the State tries to force Per

Westerberg to take care of the State's interests instead of the

interests of his patients, this being a violation of his right to

freedom of conscience,

(g) Article 10 of the Convention in that Per Westerberg has been

convicted because of his opinions about how certain patients shall be

treated, and

(h) Article 1 of the First Protocol in that, as a result of the

State's action, he has only been able to practise medicine on a limited

scale, which has resulted in loss of income.

The second applicant, Siv Westerberg, complains of violations of

(a) Articles 6 and 13 of the Convention in that the State's action

against her husband is in reality aimed at preventing her from

exercising her right to freedom of expression in Sweden and at

discouraging her from conducting cases against Sweden in Strasbourg,

and

(b) Article 25 of the Convention in that the action aimed at

discouraging her from conducting cases before the Convention organs is

a serious violation of the right of individual petition.

Both applicants complain of violations of Article 10 of the

Convention in that their right to freedom of expression and opinion and

their right to convey information have been violated.

THE LAW

1. The applicants complain of various violations of Article 6

(Art. 6) of the Convention in the disciplinary proceedings which

resulted in the disciplinary sanction of a warning being imposed on the

first applicant, Per Westerberg.

Article 6 para. 1 (Art. 6-1) of the Convention provides, in its

relevant parts, 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."

The first question which arises is therefore whether Article 6

(Art. 6) is applicable to the proceedings at issue or, in other words,

whether these proceedings concern the determination of civil rights and

obligations or of a criminal charge.

While it appears from the case-law of the European Court of Human

Rights (see, for instance, Le Compte, Van Leuven and De Meyere judgment

of 23 June 1981, Series A no. 43) that the right to practise medicine

can be regarded as a civil right, the Commission notes that in the

proceedings against Per Westerberg only the sanction of a warning was

imposed. These proceedings cannot therefore be considered to have

concerned Per Westerberg's right to practise medicine or any other

civil right or obligation.

As regards the notion of "criminal charge", the European Court

of Human Rights has established certain criteria in order to determine

whether, in the application of Article 6 (Art. 6) a charge is to be

regarded as a criminal charge. These criteria are the classification

of the offence in domestic law, the nature of the offence and the

nature and severity of the penalty that the person concerned risked

incurring (see Eur. Court H.R., Özturk judgment of 21 February 1984,

Series A No. 73, p. 18, para. 51).

In the present case, the Commission notes that in Swedish law the

proceedings at issue concerned a disciplinary offence. Moreover, the

offence was such that it could only be committed by medical doctors or

other medical personnel. The sanction was a warning, which is a typical

disciplinary sanction. There is no indication that the applicant risked

incurring a more severe sanction.

In view of these various elements, the Commission considers that

the proceedings did not concern a criminal charge within the meaning

of Article 6 (Art. 6) of the Convention.

It follows that the applicants' complaint of violations of

Article 6 (Art. 6) must be rejected as being incompatible ratione

materiae with the Convention within the meaning of Article 27

para. 2 (Art. 27-2).

2. Insofar as the applicants complain of violations of Articles 4,

9, 10 and 13 (Art. 4, 9, 10, 13) of the Convention and Article 1 of the

First Protocol (P1-1), the Commission finds no appearance of any

violation. The Commission notes, in particular, that it has in no way

been shown that the disciplinary action against Per Westerberg was

aimed at causing harm to Siv Westerberg by reason of her opinions or

of her involvement in cases brought before the Convention organs.

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. Insofar as the second applicant, Siv Westerberg, invokes Article

25 (Art. 25) of the Convention, the Commission finds no evidence that

she has been hindered in the exercise of her right to bring individual

petitions to the Commission. No action is therefore called for in this

respect.

For these reasons, the Commission unanimously

1. DECLARES THE APPLICATION INADMISSIBLE;

2. DECIDES TO TAKE NO ACTION IN REGARD TO ARTICLE 25 (Art. 25) OF

THE CONVENTION.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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WESTERBERG v. SWEDEN

WESTERBERG v. SWEDEN

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