Lexploria

AS TO THE ADMISSIBILITY

Application No. 11610/85

by Siv WESTERBERG

against Sweden

The European Commission of Human Rights sitting in private on

5 October 1987, the following members being present:

MM. C.A. NØRGAARD, President

M.A. TRIANTAFYLLIDES

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 26 April 1985

by Siv WESTERBERG against Sweden and registered on 24 June 1985 under

file No. 11610/85;

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 of the case, as they appear from the applicant's

submissions, may be summarised as follows.

The applicant is a Swedish citizen born in 1932 and resident

in Gothenburg. She is a practising lawyer.

After several years as a general medical practitioner, the

applicant's licence to practise (läkarlegitimation) was withdrawn by a

decision of 7 December 1979 by the Disciplinary Board of the Health

Organisation (medicinalväsendets ansvarsnämnd).

The applicant appealed to the Administrative Court of Appeal

(kammarrätten) of Stockholm which on 4 July 1980 rejected the appeal.

The applicant submitted a further appeal to the Supreme

Administrative Court (regeringsrätten) which rejected the appeal on

16 July 1981. In its judgment the Supreme Administrative Court stated

inter alia:

"From the comprehensive investigation of the case it clearly

appears ... that the medical practice run by (the applicant)

discloses very substantial deficiencies from a medical point

of view and that it is at such a level that it cannot be

accepted.

From the facts of the case it appears that (the applicant)

does not realise that her activities have been carried out in

an unsatisfactory manner. In view of the circumstances it

cannot be assumed that (the applicant) if she continued as

a medical practitioner would correct what is deficient.

The Supreme Administrative Court finds that (the applicant)

has shown herself to be manifestly unfit to exercise the

medical profession. Her licence to practise medicine should

therefore be revoked."

One of the justices of the Supreme Administrative

Court submitted a concurring opinion in which he developed

his opinion. He stated the following at the end of a two

page opinion:

"The circumstances which have been established through the

investigation have also been subject to the attention

of the social security office for a long time. In the

necessary co-operation with this office (the applicant) has

taken a more and more hostile attitude. There is no reason

to believe, in view of the applicant's attitude to the

problems at issue as it appears from her own writings, that

she would substiantially rectify herself after a reminder or

an admonition."

On 13 October 1983 the applicant submitted a request for a

licence to practise medicine. The request was refused by the Health

and Medical Disciplinary Board (hälso-och sjukvårdens ansvarsnämnd) on

12 April 1984, since it was considered that the conditions which had

prompted the withdrawal of the licence had not changed.

The applicant appealed to the Administrative Court of Appeal

of Stockholm, which rejected the appeal on 21 December 1984.

The applicant appealed to the Supreme Administrative Court

which, on 25 February 1985, refused to grant leave to appeal.

COMPLAINTS

1. The applicant complains that by withdrawing her licence to

practise medicine and by refusing to grant such licence the

authorities have violated her right to freedom of expression and

freedom to hold opinions since the withdrawal and the refusal were

based on expressions made by the applicant and on the opinions which

she holds. The withdrawal of the licence and the refusal to renew it

are a sanction for expressions made by the applicant, inter alia, in

the Medical Practitioners' Journal (Läkartidningen) in 1975, where she

criticised the social security office. The applicant also refers to

the concurring opinion of one of the justices of the Supreme

Administrative Court to substantiate that the measures against her

were based on her opinions. She alleges a breach of Article 10 of the

Convention.

2. The applicant also alleges a violation of Article 6 of the

Convention. She submits that the Courts without proof have accepted

unsubstiantiated allegations from her counter party. Consequently,

the Courts have not been impartial.

THE LAW

1. The applicant complains that the withdrawal of her licence to

practise medicine and the subsequent refusal to grant her such a

licence were a sanction for her having expressed opinions. She alleges a

breach of Article 10 (Art. 10) of the Convention, which guarantees the right to

freedom of expression, a right which includes the freedom to hold opinions.

The applicant also complains that the treatment which her case

received by the Courts was not impartial and that there has

accordingly been a breach of Article 6 (Art. 6) of the Convention.

2. The Commission recalls that the applicant's licence was

withdrawn by a decision of 7 December 1979, a decision which was

eventually confirmed by the judgment of the Supreme Administrative

Court dated 16 July 1981. Later the applicant sought to obtain a new

licence to practise medicine. Her request was refused, the final

decision being the decision of the Supreme Administrative Court of

25 February 1985.

Under Article 26 (Art. 26) of the Convention the Commission may only

deal with an application which has been introduced within six months

from the final domestic decision. The present application was

introduced on 26 April 1985 which is more than six months after

16 July 1981, being the date of the judgment of the Supreme

Administrative Court whereby the withdrawal of the applicant's licence

became final. The applicant's complaints relating to this judgment

and the procedure which preceded that judgment have accordingly been

lodged out of time with the Commission, and must therefore be rejected

pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.

3. As regards the refusal to grant the applicant a licence to

practise medicine, it is recalled that this refusal was based on the

consideration that the conditions which had prompted the withdrawal of

the licence had not changed. Accordingly, when examining this refusal

under Article 10 (Art. 10) of the Convention the Commission must take into

account the grounds given for the withdrawal of the applicant's

licence. Having examined the grounds indicated in the judgment of the

Supreme Administrative Court of 16 July 1981, as well as the

concurring opinion, the Commission finds no reason to conclude that

the refusal to grant the licence to practise medicine was based on,

or motivated by, the applicant's criticism against the authorities.

There is therefore no interference with the applicant's right to

freedom of expression as guaranteed by Article 10 para. 1 (Art. 10-1) of the

Convention.

It follows that, in this respect, the application is manifestly

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

Convention.

4. With regard to the complaint under Article 6 (Art. 6) of the Convention

the Commission, assuming that Article 6 is applicable to the proceedings in

question, recalls that, in accordance with Article 19 (Art. 19) of the

Convention, its only task is to ensure the observance of the obligations

undertaken by the Parties in the Convention. In particular, it is not

competent to deal with an application alleging that errors of law or fact have

been committed by domestic courts, except where it considers that such errors

might have involved a possible violation of any of the rights and freedoms set

out in the Convention. The Commission refers, on this point, to its constant

case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No.

5258/71, Dec. 8.2.73, Collection 43 pp. 71,77; No. 7987/77, Dec. 13.12.79, D.R.

18 pp. 31, 45). The Commission is thus not competent to examine whether or not

the domestic courts have correctly evaluated the evidence before them.

The Commission finds that the applicant's submissions do not

disclose any appearance of a violation of Article 6 (Art. 6) of the Convention

in the proceedings complained of.

It follows that the remainder of the application is manifestly

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

Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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WESTERBERG v. SWEDEN

WESTERBERG v. SWEDEN

LEXI