Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13942/88

by K.

against Switzerland

The European Commission of Human Rights sitting in private

on 4 October 1990, the following members being present:

MM. C.A. NØRGAARD, President

F. ERMACORA

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

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 2 April 1988

by K. against Switzerland and registered on 15 June 1988 under

file No. 13942/88;

Having regard to:

- the report provided for in Rule 47 of the Rules of Procedure

of the Commission;

- the observations submitted by the respondent Government on

22 December 1989 and the observations in reply submitted by the

applicant on 21 January 1990;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the parties, may be

summarised as follows:

The applicant, a Swiss citizen born in 1950, is a doctor

residing at Brissago in Switzerland.

A. Particular circumstances of the case

I.

After successfully passing the required examinations, the

applicant obtained his diploma in medicine in 1981. Since then he has

been working inter alia as an assistant doctor (Assistenzarzt). In

respect of this activity he does not require an additional

authorisation in the Canton of Zurich.

On 19 October 1982 the applicant was further granted the

authorisation independently to work as a doctor in the Canton of

Zurich. On 26 April 1983 the authorisation was withdrawn by the

Zurich Health Direction (Gesundheitsdirektion) on the ground that he

had not made use of this authorisation, in particular as he had moved

to another area in Switzerland.

The applicant's appeal (Rekurs) against this decision was

dismissed by the Zurich Council of State (Regierungsrat) on 17 August

1983. The Council of State found that the mere fact that the

applicant's authorisation had been terminated and that, on payment of

a small fee, it could again be granted once the applicant resumed his

practice in Zurich, did not suffice to create for the applicant a

legally protected interest to obtain an appeal decision. The Council

of State further found that in any event the authorisation

independently to practise as a doctor was not a general authorisation

to practise at an undetermined moment in time. Rather, it concerned a

concrete activity. The applicant however no longer lived in the Canton

of Zurich.

II.

Between 6 August and 17 September 1984 the Emergency Service

of the Medical Association of the Zurich District (Ärztlicher Not-

falldienst des Ärzteverbandes des Bezirks Zürich) employed the

applicant as an assistant doctor.

On 28 August 1984 the applicant fetched the patient Mrs E. de

V., who was partly paralysed and residing at a private old persons'

home, and brought her into her flat in Zurich where he organised

her treatment. On 29 August 1984 the Emergency Service requested

the applicant to treat Mrs E. de V. The applicant subsequently

prepared on a form of the Emergency Service of the Medical Association

his bill for the treatment of Mrs E. de V., amounting to 7,447.80

SFr. The applicant transmitted the bill to the curator (gesetzlicher

Vertreter) of Mrs E. de V. who on 13 September 1984 was provisionally

placed under tutelage. The bill was to be paid directly into the

applicant's postal account (Postscheckkonto) rather than the account

of the Medical Association.

The applicant was then charged with fraud and certain

contraventions of the Zurich Health Act (Gesetz über das Gesundheits-

wesen) of 1962. He was accused inter alia of having treated Mrs E. de

V. without being in the possession of authorisation independently to

practise as a doctor, as required by Section 7 para. 1 (a) of the Health

Act (see below, Relevant domestic law).

On 13 January 1986 the Zurich District Court (Bezirksgericht)

acquitted the applicant, noting inter alia that the bill of indictment

had not stated with sufficient precision which medical treatment the

applicant had undertaken without the authorisation independently to

practise as a doctor.

III.

On 31 January 1985 the applicant applied for the authorisation

independently to practise as a doctor. This was rejected by the

Zurich Health Direction on 11 September 1985 on the ground that the

applicant was not "trustworthy" as required by the Health Act

(Gesundheitsgesetz) for this authorisation. The Health Direction

found that the applicant, by bringing Mrs. E. de V. to her flat, had

in fact undertaken a medical act within the meaning of Section 7 of

the Act.

The applicant's appeal (Rekurs) was on 1 October 1986

dismissed by the Zurich Council of State (Regierungsrat) which found

that the applicant, by writing out bills for his treatment of

Mrs. E. de V., had violated Section 7 para. 1 (a) of the Health Act.

This finding was not affected by the fact that the District Court had

on 13 January 1986 acquitted the applicant. The Council of State

noted in particular that the applicant himself had in his bill

referred to his treatment as instances of medical work.

The applicant filed a further appeal (Beschwerde) with the

Zurich Administrative Court (Verwaltungsgericht) in which he requested

the authorisation independently to practise as a doctor. On 11 March

1987 the Court dismissed the appeal, though it determined a waiting

period for the applicant until the beginning of 1988 for applying for

a new authorisation.

The applicant's then lawyer subsequently filed a public

law appeal numbering 73 pages on which the Federal Court

(Bundesgericht) deliberated in public on 22 October 1987. According to

the subsequent decision of the Federal Court of that date, five judges

participated at the deliberations and later in the decision on the

applicant's public law appeal (see below, Relevant domestic law).

The applicant's lawyer, who was present, later described the

deliberations in a statement to the applicant. According to this

statement, judge X., as Rapporteur, proposed to uphold as a whole the

applicant's public law appeal and to grant him the authorisation to

practise.

According to the lawyer's statement, judge Y., who acted as

Co-Rapporteur, was upset about the extraordinary length of the public

law appeal statement. As it had been far too long for him, he had

only read it up to about page 30. He had also not been able to study

the documents, as due to an error on the part of the Court Chancellery

these had only been at his disposal one day before the deliberations.

On 22 October 1987 the Federal Court gave its decision in

which it quashed the waiting period imposed on the applicant. The

remainder of the public law appeal was dismissed. According to a

letter which Dr. B., a friend of the applicant, wrote to judge X. on

28 December 1987, the Federal Court took its decision by four votes to

one, namely the vote of the judge Rapporteur.

In its decision the Federal Court first rejected certain

complaints as being inadmissible though it noted that exceptionally it

could in such cases, if the public law appeal was successful, not only

quash the contested decision but also order the granting of the

authorisation requested if all the other conditions were met. The

Federal Court then dealt inter alia with the authorities' reproach

that the applicant had treated Mrs E. de V. without the necessary

permission. The decision states:

"This reproach is justified. In summer 1984 the

applicant was only permitted to work in the framework of the

Emergency Service of the Medical Association of the Zurich

District, but not independently. He did not conduct the

transport of the patient (de V.) as emergency doctor.

Nevertheless, it was materially necessary for him

to consider whether the patient should have been advised

on medical grounds not to return home. However, according

to S. 7 (a) of the Health Act the determination for

remuneration of illnesses or health disturbances already

amounts to a medical activity which requires permission.

Such an authorisation the applicant did not possess...

The penal judge has acquitted the applicant of the

charge of attempted fraud... Nevertheless, he himself

subsequently reduced the bill for medical services from

23 to 31 August 1984 from 7,447.80 Fr. to 2,063.40 Fr. Thus

the conduct of the applicant does in fact astonish. He has,

as the Administrative Court showed in its reply, employed a

form of the Emergency Service for services of a non-medical,

daily nature lying largely outside the Medical Emergency

Service. Without giving a reason he filled it out according

to the code of the medical insurances. He thus created the

impression that he had undertaken all these services as an

emergency doctor. This is incorrect and must not be

tolerated...

In sum, at least two reproaches levelled against the

applicant appear relevant in respect of his trustworthiness:

in one case he has exercised a medical activity without the

permission to practise. Also, when issuing the bill he mixed

medical and non-medical activities, and he employed a form of

the Emergency Service, thereby creating the impression that it

concerned exclusively medical services, in fact medical emergency

services" (pp. 10 et seq.).

"Dieser Vorwurf ist begründet. Dem Beschwerdeführer war

im Sommer 1984 lediglich erlaubt, im Rahmen des Notfalldienstes

des Ärzteverbandes des Bezirkes Zürich, nicht aber selbständig,

ärztlich tätig zu sein. Die Rückführung der Patientin (de V.)

hat er nicht als Notfallarzt durchgeführt. Sachnotwendig hat er

sich aber im Rahmen seiner ärztlichen Sorgfaltspflicht

Rechenschaft darüber geben müssen, ob der Patientin aus

medizinischen Gründen nicht von einer Heimkehr abzuraten sei.

Die Feststellung von Krankheiten oder gesundheitlichen Störungen

gegen Entgelt stellt aber nach § 7 lit. a GesundheitsG bereits

eine bewilligungspflichtige ärztliche Tätigkeit dar. Eine solche

Bewilligung besass der Beschwerdeführer nicht...

Vom Vorwurf des Betrugsversuchs hat ihn der Strafrichter

freigesprochen... Freilich reduzierte er in der Folge selber die

Rechnung für ärztliche Leistungen vom 23. bis 31. August 1984 von

Fr. 7'447.80 auf Fr. 2'063.40. Deshalb befremdet das Vorgehen

des Beschwerdeführers gleichwohl. Er hat, wie das Verwaltungs-

gericht in seiner Vernehmlassung zutreffend darlegt, für

grossenteils ausserhalb des ärztlichen Notfalldienstes erbrachte

Leistungen nicht medizinischer, alltäglicher Natur ein Formular

des Notfalldienstes verwendet, es ohne Grundangabe nach

Krankenkasse-Code ausgefüllt und dadurch den Eindruck erweckt,

er habe diese Leistungen allesamt als Notfallarzt verrichtet.

Dies ist unlauter und darf nicht toleriert werden...

Zusammenfassend erscheinen mindestens zwei der gegenüber

dem Beschwerdeführer erhobenen Vorwürfe im Hinblick auf dessen

Vertrauenswürdigkeit von Belang: er hat in einem Fall ohne

Praxisbewilligung eine ärztliche Tätigkeit ausgeübt, und er hat

bei der Rechnungstellung ärztliche und nichtärztliche Tätigkeiten

vermengt, ein Formular des Notfalldienstes verwendet und dadurch

den Eindruck erweckt, es handle sich ausschliesslich um

ärztliche, und zwar notfallärztliche Leistungen" (S. 10 ff).

IV.

The applicant then filed a request for reopening the

proceedings before the Federal Court on the ground that the Court had

given a decision without knowing the case-file. On 14 March 1988 the

Court dismissed this request. Its decision first summarised the

deliberations on 22 October 1987 as follows:

"At the public deliberation one judge expressed his

dissatisfaction that the documents had not been available for a

sufficiently long period of time [beforehand they had been

transmitted to a supplementary judge participating at the

session]; therefore, he had been able to read thoroughly only

the first 35 pages of the - much too long - public law appeal

statement which numbered 73 pages."

"Anlässlich der öffentlichen Beratung äusserte ein

Richter seinen Unmut darüber, dass die Akten nicht genügend lange

auflagen [sie waren zuvor dem an der Sitzung teilnehmenden

Ersatzrichter zugesandt worden]; er habe deswegen nur die ersten

35 Seiten der - viel zu langen - 73 Seiten umfassenden

Beschwerdeschrift gründlich lesen können."

The Court then considered that the applicant's complaint did

not correspond to any of the statutory reasons for reopening the

proceedings and therefore dismissed the applicant's request.

The applicant submitted three further requests for the

reopening of the Federal Court's proceedings which were dismissed by

the Federal Court in decisions of 5 May and 23 August 1988 and 6 June

1989, respectively. He also attempted to introduce criminal

proceedings against a judge and a public prosecutor.

B. Relevant domestic law

Section 7 para. 1 (a) of the Zurich Health Act requires an

authorisation from the Health Direction if it is intended, against

remuneration or professionally, to determine or to treat illnesses,

injuries or other health disturbances or generally to undertake

medical acts (medizinische Verrichtungen). Section 8 para. 1 states:

"The Health Direction will grant the authorisation if the

applicant meets the professional requirements of this Act, if he is

trustworthy and if he is not suffering from a mental or bodily

disorder which renders him manifestly unable to exercise his

profession."

"Die Direktion des Gesundheitswesens erteilt die

Bewilligung, wenn der Gesuchsteller die durch dieses Gesetz

verlangten fachlichen Anforderungen erfüllt, vertrauenswürdig

ist und nicht an einem geistigen oder körperlichen Gebrechen

leidet, das ihn zur Berufsausübung offensichtlich unfähig macht."

As regards the proceedings before the Federal Court, Section

17 para. 1 of the Federal Judiciary Act (Organisationsgesetz) states

that, with exception of penal, bankruptcy and disciplinary matters,

the proceedings with the parties (Parteiverhandlungen) before the

Court as well as its deliberations and votes are as a rule conducted

in public.

According to Section 9 of the Federal Court's Regulations

(Reglement für das Schweizerische Bundesgericht), the Presidents of

the Divisions (Abteilungen) of the Federal Court distribute the cases

among the judges of their Divisions who will undertake the task of

judge Rapporteur (Berichterstattung) in a certain number of cases.

Section 11 of the Regulations determines that the President of

the Division concerned convenes the sessions by means of agenda lists

(Traktandenlisten) which must be distributed at least six days in

advance. The files of the cases stated on the agenda lists must be

available for consultation at the latest when the sessions are

convened.

Section 12 of the Regulations states that at the deliberations

the President first gives the floor to the judge Rapporteur, then to

the other members. The President speaks last.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the

Convention that the Federal Court judge Y. decided on 22 October

1987 on his public law appeal without knowing the case-file.

The applicant further complains that the Federal Court, in its

decision of 22 October 1987, contravened Article 6 para. 2 of the

Convention by finding a violation of the Health Act, although he had

been acquitted of the relevant criminal charges.

The applicant, who furthermore generally complains about the

proceedings, also relies on Article 3 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 April 1988 and registered

on 15 June 1988.

On 8 September 1989 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the application

limited to the issue under Article 6 para. 1 of the Convention.

The Government's observations were received by letter dated

22 December 1989 and the applicant's observations were dated 21 January

1990.THE LAW

1. The applicant complains that a Federal Court judge decided on

22 October 1987 on his public law appeal without knowing the

case-file. The applicant relies on Article 6 para. 1 (Art. 6-1) of

the Convention which states, insofar as it is relevant:

"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 Government submit that, rather than concentrating on an

isolated incidence, due consideration must be given to the fact that

the applicant's new request for an authorisation was dealt with

thoroughly by various instances, namely the Zurich Health Direction

and the Zurich Council of State each in a decision of 9 pages, the

Zurich Administrative Court in a decision of 27 pages, and the Federal

Court in a decision of 16 pages.

The Government further submit that Article 6 para. 1

(Art. 6-1) of the Convention is not applicable in the present case.

The European Court of Human Rights has so far not dealt with the issue

whether the request to exercise the medical profession falls under the

scope of Article 6 para. 1 (Art. 6-1) of the Convention. With

reference to the Commission's Report in the Karni case (see Karni v.

Sweden, Comm. Report 15.12.88) the Government submit that such an

authorisation is an administrative act, subject to certain conditions,

and does not grant any subjective right. In the present case, the

authorisation was refused as the applicant was not trustworthy, which

is a matter of appreciation. As a result, his request for an

authorisation did not concern a "right" within the meaning of Article

6 para. 1 (Art. 6-1) of the Convention. Even if it did, it would fall

into the domain of public law and not concern a "civil" right.

As regards the proceedings before the Federal Court the

Government submit that the complaint is in any case manifestly

ill-founded. The Government distinguish between the file of the

Federal Court, consisting of the public law appeal statement, the

contested decision and the further submissions of the parties, and the

Cantonal file. The latter may be consulted a number of days before the

hearing at the Federal Court's Chancellery. Knowledge of the

Rapporteur's Report and the Cantonal file will suffice for a judge to

be in a position to decide on the allegations. Moreover judge Y. did

not avail himself of the opportunity to request adjournment of the

decision which he could have done if he did not feel at ease with

regard to the case-file.

The Commission, having regard to the parties' submissions

under Article 6 para. 1 (Art. 6-1) of the Convention, considers that

this complaint raises complex issues of fact and law which can only be

resolved by an examination of the merits. This part of the

application cannot, therefore, be declared manifestly ill-founded. No

other grounds for inadmissibility have been established.

2. The applicant also complains that the Federal Court, in its

decision of 22 October 1987, contravened Article 6 para. 2 (Art. 6-1) of the

Convention by finding a violation of the Health Act, although he had

previously been acquitted of the relevant criminal charges.

Article 6 para. 2 (Art. 6-2) guarantees that "everyone charged

with a criminal offence shall be presumed innocent until proved guilty

according to law".

The Commission recalls that the presumption of innocence

enshrined in Article 6 para. 2 (Art. 6-2) of the Convention will be

violated if without the accused having previously been proved guilty

according to law a judicial decision concerning him reflects an

opinion that he is guilty (Eur. Court H.R., Minelli judgment of 25

March 1983, Series A no. 62, p. 18 para. 37; mutatis mutandis, Eur.

Court H.R., Lutz/Englert/ Nölkenbockhoff judgments of 25 August 1987,

Series A no. 123, p. 25 para. 60, pp. 54-55 para. 37, and p. 79 para.

37, respectively).

In the present case the Commission notes that on 13 January 1986

the Zurich District Court acquitted the applicant of various criminal

charges. However, in the subsequent proceedings concerning the

authorisation to practise independently as a doctor the Federal Court in

its decision of 22 October 1987 assessed the issue of the applicant's

trustworthiness, as required by the Zurich Health Act for the granting of

the authorisation concerned.

In this respect the Commission considers that different

standards apply to the assessment whether a criminal offence has been

committed, and whether the requirements for an authorisation

independently to practise as a doctor have been met, the latter

requirements being necessarily stricter and going beyond the limits of

criminal law. This distinction also lay at the basis of the Federal

Court's decision in which it furthermore expressly noted that the

applicant had been acquitted in the criminal proceedings.

In this respect therefore the application is manifestly

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

Convention.

3. Insofar as the applicant generally complains about the

proceedings and thereby also relies on Article 3 (Art. 3) of the Convention,

the Commission finds no issue under this provision. 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.

For these reasons, the Commission,

by a majority DECLARES ADMISSIBLE, without prejudging the

merits of the case, the applicant's complaint under

Article 6 para. 1 (Art. 6-1) of the Convention concerning the

proceedings before the Federal Court;

unanimously DECLARES INADMISSIBLE the remainder of the

application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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K. v. SWITZERLAND

K. v. SWITZERLAND

LEXI