Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12645/87

by R.

against the Netherlands

The European Commission of Human Rights sitting in private

on 12 December 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. J. RAYMOND, Deputy 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 1 October 1986

by R. against the Netherlands and registered on 19 January 1987 under

file No. 12645/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts as submitted by the applicant may be summarised as

follows:

The applicant is a Dutch national, born in 1924 and currently

resident in K., the Netherlands. Before the Commission he is

represented by Mr. J. Bijkerk, a lawyer practising in Utrecht, the

Netherlands.

The applicant is a general practitioner with a small local

practice. He also serves as the local dispensing chemist. To

supplement his income he also treats patients from outside his

community.

In respect of these outside patients, he had become the

subject of complaints by patients and other doctors. These had

allegedly discovered that the applicant had prescribed non-existent

and/or non-registered medicines, which he himself prepared, and that

he had ordered un-orthodox treatments, all without consulting the

other doctors dealing with these patients. On two previous occasions

the applicant had been fined for having committed similar acts.

On 22 June 1979 a complaint against the applicant was lodged

with the Medical Disciplinary Board (Medisch Tucht College) of Zwolle.

The complaint was deposited by both the Regional Medical Inspector of

Public Health (Geneeskundig Inspecteur voor de Volksgezondheid) and

the Regional Public Health Inspector for Medicines (Inspecteur van de

Volksgezondheid voor de Geneesmiddelen). It was alleged that the

applicant had committed acts which undermine public faith in the

medical profession and had exhibited serious incompetence in the

practice of medicine and the preparation of medicines.

On 29 September 1984 the Medical Disciplinary Board of Zwolle

ruled that the applicant be suspended from practising medicine for one

year.

The applicant appealed against this decision to the Court of

Appeal (Gerechtshof) of Arnhem. On 26 June 1985 this Court overruled

the decision of the Medical Disciplinary Board and declared

inadmissible the complaint of the Public Health Authorities against

the applicant, because the complaint had not been dealt with within a

reasonable time as required by Article 6 of the Convention.

Thereupon, the Public Health Authorities appealed to the

Supreme Court (Hoge Raad). On 7 February 1986, the Supreme Court

quashed the decision of the Court of Appeal of Arnhem and referred the

case to the Court of Appeal of Leeuwarden. The Supreme Court

considered that the right to practise medicine was a civil right and

that therefore Article 6 para. 1 of the Convention applied to the

proceedings in question. However, the Supreme Court considered that,

although the determination of the applicant's right to continue to

practise medicine had not taken place "within a reasonable time", the

consequence of this delay was not to render the original complaint

inadmissible, but solely to inhibit the application of a disciplinary

measure. The Supreme Court added that the interests of general public

health and those of the applicant's patients require that the Court of

Appeal investigate and form an opinion on the merits of the complaints

as presented by the Public Health Inspectors.

Apparently, the Court of Appeal of Leeuwarden, which has been

instructed by the Supreme Court to give a decision on the merits of

the complaint against the applicant, has suspended its proceedings

pending the outcome of this application before the Commission.

COMPLAINTS

The applicant complains that disciplinary proceedings against

him, begun in 1979, are still pending. The determination of his case

has therefore not been made within a reasonable time. He invokes

Article 6 para. 1 of the Convention. The applicant argues that,

although the currently pending proceedings cannot culminate in a

disciplinary measure, they nevertheless have a negative, if not

damaging, effect on his right to practise medicine.

THE LAW

The applicant has complained that the disciplinary proceedings

against him have not been terminated within a reasonable time. He

invokes Article 6 para. 1 (Art. 6-1) of the Convention. He alleges

that, although a disciplinary measure can no longer be applied to him,

his civil right to practise medicine remains affected by the

proceedings.

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

alia, as follows:

"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 Commission notes that the Dutch courts concluded that

Article 6 para. 1 (Art. 6-1) of the Convention applied to the initial

disciplinary proceedings. It further notes that the Supreme Court

found that the determination of the applicant's right to continue

practising medicine had not been made within a "reasonable time", as

required by Article 6 para. 1 (Art. 6-1) of the Convention. The

Supreme Court, therefore, decided that no disciplinary measure could

be imposed on the applicant. However, the Supreme Court considered

that, in the interest of public health, it was essential that a court

pronounce an opinion on the legality of the practices in which the

applicant had engaged. Consequently, it ordered that the Court of

Appeal of Leeuwarden examine the merits of the complaints against the

applicant. The issue which arises is whether Article 6 para. 1 (Art.

6-1) of the Convention also applies to the continued proceedings

before the Court of Appeal.

The Commission recalls that disciplinary proceedings against a

medical practitioner which may result in a suspension of the right to

practise medicine amount to a determination of a civil right within

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

Eur.Court H.R., König judgment of 23 April 1977, Series A no. 27,

para. 95 p. 32, and Albert and Le Compte judgment of 24 October 1983,

Series A no. 58, para. 28, p. 15).

The applicant has alleged that the pending proceedings before

the Court of Appeal, which will culminate in a pronouncement on the

merits of the public health complaint concerning his professional

conduct, have and will have a direct and damaging effect on his

practice of medicine.

However, the Commission observes that in the present case, the

proceedings before the Court of Appeal of Leeuwarden concern a

determination of the merits of public health complaints regarding the

applicant's professional conduct and, as such, will only result in a

declaratory judgment. The Commission recalls the specific character

of the medical profession - a profession which is exercised in the

general interest - and the special duties incumbent on its members

(see for example the above-mentioned Albert and Le Compte judgment,

para. 28, p. 16).

The Commission considers that the determination on the merits

of the public health complaints against the applicant concern the

public obligations of the applicant as a member of the medical

profession. Although the declaratory judgment by the Court of Appeal

may have an effect on the applicant's medical practice and to his

professional reputation the proceedings are meant to specify the rules

applicable in the interest of public health and, therefore, do not

directly involve a determination of civil rights and obligations of

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

Convention.

It follows that the application is incompatible ratione

materiae with the provisions of the Convention within the meaning of

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

For these reasons, the Commission,

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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R. v. the NETHERLANDS

R. v. the NETHERLANDS

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