FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application No. 30937/96

by Herman Olivier ZOON

against the Netherlands

The European Court of Human Rights ( First Section) sitting on 12 January 1999 as a Chamber composed of

Mrs E. Palm, President

Mr J. Casadevall ,

Mr L. Ferrari Bravo,

Mr C. Bîrsan ,

Mr B. Zupančič ,

Mrs W. Thomassen ,

Mr T. Pantiru ,

with Mr M. O’Boyle, S ection Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 26 January 1996 by Herman Olivier ZOON  against the Netherlands and registered on 2 April 1996 under file No. 30937/96;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch citizen, born in 1950, and residing in Calpe , Spain. Before the Court he is represented by Mr G.H.J. Dolk , a lawyer practising in Rotterdam, the Netherlands.

The facts of the case, as submitted by the applicant, may be summarised as follows.

A. The particular circumstances of the case

The applicant was working as a general practitioner in Dirksland , the Netherlands, when, on 1 February 1994 two Regional Public Health Inspectors ( Geneeskundig Inspecteurs van de Gezondheidszorg ) filed a complaint against him with the Board for the Adjudication in First Instance of Cases concerning Medical Disciplinary Law of The Hague ( College voor de beslissing in eerste aanleg in zaken van het Medisch Tuchtrecht - hereinafter referred to as ‘Medical Disciplinary Board’). The Inspectors alleged that the applicant had issued prescriptions with the indication “I.M.M.” ( in manu medici ). The medications concerned were then delivered to the applicant who did not pass them on to the patient in whose name he had written the prescription. Instead, the applicant was said to have sold a number of these medications on to other patients and to have reserved for his own use one particular medicament, which appeared on the list of illegal substances contained in the Opium Act. The applicant was further accused of having administered medication for other than the usual purposes and of having carried out surgical operations which general practitioners do not customarily perform.

The Medical Disciplinary Board dealing with the complaints was composed of a lawyer as Chairman and four physicians as members. Following two hearings the Medical Disciplinary Board decided on 31 August 1994 that the complaints brought by the Inspectors were well-founded. It concluded that in violation of Section 1 of the Medical Disciplinary Act ( Medische Tuchtwet ) the applicant had undermined the confidence to be placed in the order of physicians and that he had displayed gross ignorance. It further found that, in violation of Section 4a of the Medical Disciplinary Act, the applicant had made a habit of abusing an illegal substance. The applicant was disqualified from practising medicine. These proceedings had taken place in camera , and the decision was read out at a public hearing on 19 October 1994.

The applicant filed an appeal with the Court of Appeal ( Gerechtshof ) of The Hague, arguing, inter alia , that the Medical Disciplinary Board did not constitute an independent and impartial tribunal as required by Article 6 of the Convention. In this respect he submitted that three of the physicians on the Board practised medicine in the same geographical area as the applicant and they were thus also subject to the supervision carried out by the same Health Inspectors who had lodged the complaints against him. The applicant also complained that the proceedings before the Medical Disciplinary Board had not taken place in public.

The applicant further argued that he should have been able to rely on an agreement reached between the Health Inspectors and himself in November 1993, to the effect that the Inspectors would not attempt to make it impossible for him to practise medicine. Contrary to this agreement, the Inspectors had nevertheless proceeded to lodge complaints against him.

Finally, the applicant requested the Court of Appeal that in addition to the two expert witnesses appointed by the Court a third expert witness would be heard.

On 16 March 1995 a hearing took place before the Court of Appeal. According to the minutes ( procès-verbaal ) of this hearing, it was conducted in public. The Procurator General stated as his opinion that the decision of the Medical Disciplinary Board ought to be quashed but that the same penalty should be imposed. In reply, counsel argued for a more lenient approach. At the end of the hearing, the Court of Appeal decided that it was not necessary to hear the expert witness proposed by the applicant. Counsel stated that he shared that view. The minutes show that the applicant was given the opportunity to address the Court of Appeal last.

In its decision of 6 April 1995 the Court of Appeal upheld the decision of the Medical Disciplinary Board. It found that there had been no violation of Article 6 § 1 of the Convention as the applicant had been able to file an appeal against the decision of the Medical Disciplinary Board with a tribunal that complied with the requirements of that provision. Moreover, since the Court of Appeal was of the opinion that the general interest required that the case be examined, its competence to do just that could not be set aside by an agreement allegedly reached with the Inspectors - which agreement did in any event not entail that no complaint would be lodged.

The applicant filed an appeal in cassation with the Supreme Court ( Hoge Raad ).  He again complained that the Medical Disciplinary Board lacked independence and impartiality and that neither the proceedings before that body nor those before the Court of Appeal had complied with the requirements of publicity as legally prescribed. In the latter respect he referred to Section 13a § 1 of the Medical Disciplinary Act according to which a hearing will take place in public if the tribunal dealing with the case so decides. The applicant submitted that clearly no such decision had been taken since, if this had been the case, Rule 48 of the Rules of Medical Disciplinary Law ( Reglement Medisch Tuchtrecht ) required that notification of the hearing be given and that such notification be published in local newspapers, neither of which events had occurred.

The applicant further raised the complaint relating to the agreement reached between the Health Inspectors and himself. He finally argued that at the hearing before the Court of Appeal counsel had had to address the Court before the Procurator General had done so.

The Supreme Court examined the appeal on 8 September 1995. On 5 December 1995 the Advocate General ( Advocaat-Generaal ) at the Supreme Court submitted his written opinion proposing that the appeal in cassation be rejected. This written opinion was sent to the applicant’s representative the next day.

The Supreme Court rejected the appeal in cassation on 19 January 1996. In respect of the complaint of the lack of publicity of the proceedings before the Court of Appeal the Supreme Court noted that according to the minutes of the hearing this had taken place in public. The mere fact that it did not appear from the case-file that the notification of the hearing had been published in one or more local newspapers as required by Rule 48 of the Rules of Medical Disciplinary Law was insufficient to lead to the conclusion that the Court of Appeal’s decision ought to be quashed.

B. Relevant domestic law and practice

The duties and position of the Procurator General’s department ( openbaar ministerie ) are defined in the Judiciary (Organisation) Act ( Wet op de rechterlijke organisatie ).

The Procurator General’s department consists of the Procurator General and advocates general at the Supreme Court, the procurators general and advocats general at the Courts of Appeal and the public prosecutors at the Regional and District Courts (Section 3 § 1 of the Judiciary (Organisation) Act). The advocats general at the Supreme Court act as deputies of the Procurator General at that court and are subordinate to him (Sections 3 § 2 , 5a and 6 § 1).

The Procurator General’s department must be heard by the courts in so far as the law so prescribes (Section 4). Pursuant to Section 324 §§ 2 and 3 of the Code of Civil Procedure ( Wetboek van Burgerlijke Rechtsvordering ) this is the case in disciplinary proceedings. In cases where a hearing has taken place, neither the parties to such proceedings nor their representatives are allowed to address the court after the Procurator General’s department has presented its opinion (Section 328 § 1 in conjunction with Section 326 of the Code of Civil Procedure).

The advisory opinion of the Procurator General or an advocate general at the Supreme Court takes the form of a learned treatise containing references to relevant case-law and a recommendation, which is not binding on the Supreme Court, to uphold or reject points of appeal.

Following the Court’s judgment in the case of Borgers v. Belgium (judgment of 25 September 1992, Series A no. 214-B), the Supreme Court changed its practice in criminal proceedings and counsel was given the opportunity to respond to the advisory opinions issued by the Procurator General or advocates general at the Supreme Court. However, this change did not apply to disciplinary proceedings.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that the Medical Disciplinary Board was not an independent and impartial tribunal and that the proceedings before the Medical Disciplinary Board and the Court of Appeal did not take place in public.

He further submits that in the proceedings before the Court of Appeal and the Supreme Court he was unable to react to the opinions of the Procurator General’s department.

Moreover, by ignoring the agreement concluded between the applicant and the Health Inspectors, the Court of Appeal effectively replaced the Inspectors as the complaining party which resulted in a denial of the principle of “equality of arms”.

Finally, the applicant complains of the refusal by the Court of Appeal of his request for a third expert witness to be heard.

THE LAW

The applicant raises a number of complaints under Article 6 § 1 of the Convention in respect of the disciplinary proceedings which resulted in his disqualification from practising medicine. Article 6 § 1 of the Convention, in so far as relevant, provides as follows:

“1. In the determination of his civil rights and obligations…, everyone is entitled to a fair and public hearing … by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

1. The applicant submits in the first place that the Medical Disciplinary Board was not an independent and impartial tribunal and that the proceedings before that Board and those before the Court of Appeal did not take place in public.

The Court recalls that disciplinary proceedings in which what is at stake - as in the instant case - is the right to continue to practise medicine as a private practitioner give rise to “ contestations (disputes) over ‘civil’ rights” within the meaning of Article 6 § 1 (cf. the Le Compte , Van Leuven and De Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, pp. 19-23, §§ 41-51; the Albert and Le Compte v. Belgium judgment of 10 February 1983, Series A no. 58, pp. 14-16, §§ 25-29; the Diennet v. France judgment of 26 September 1995, Series A no. 325-A, p. 13, § 27; and the Gautrin and Others v. France judgment of 20 May 1998, § 33, to be published in Reports of Judgments and Decisions 1998).

The Court further reiterates that conferring the duty of adjudicating on disciplinary offences on professional disciplinary bodies does not in itself infringe Article 6 § 1 of the Convention. Nonetheless, in such circumstances the Convention calls for at least one of the following two systems: either the professional disciplinary bodies themselves comply with the requirements of that Article, or they do not so comply but are subject to subsequent review by a judicial body that has full jurisdiction and does provide the guarantees of Article 6 § 1 (see the Albert and Le Compte judgment cited above, p. 16, § 29).

In the present case, the Court notes that the applicant filed an appeal against the decision of the Medical Disciplinary Board with the Court of Appeal. Moreover, the Court of Appeal had full jurisdiction and the applicant has not raised any objections in respect of the independence and impartiality of the judges of that court.

The applicant has, however, submitted that the proceedings before the Court of Appeal lacked the required publicity. The Court notes, as the Supreme Court did, that it appears from the minutes of the hearing before the Court of Appeal that this did take place in public. Even assuming that the notification of the hearing had not been published in local newspapers as alleged by the applicant, the Court can find no indication or allegation to the effect that either press or public wanting to attend were excluded from the hearing. It considers, therefore, that the hearing before the Court of Appeal complied with the requirement of publicity within the meaning of Article 6 § 1 of the Convention.

It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. The applicant further contends that he was unable to respond to the opinions submitted on behalf of the Procurator General’s department in the proceedings before the Court of Appeal and the Supreme Court.

In respect of the proceedings before the Court of Appeal the Court notes that according to the minutes of the hearing on 16 March 1995, counsel replied to the opinion of the Procurator General to the Court of Appeal. His allegation is thus not borne out by the facts and this part of the complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

In so far as the proceedings before the Supreme Court are concerned, however, the Court finds that it cannot, on the basis of the file, determine the admissibility of this complaint at this stage and considers that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

3. The applicant also complains that the penalty of disqualification from practising medicine was imposed on him despite the agreement he had reached with the Health Inspectors to the effect that they would not attempt to make it impossible for him to practise medicine.

The Court considers that this complaint raises no issues under Article 6 § 1 of the Convention and this part of the application must therefore also be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

4. The applicant finally complains of the refusal by the Court of Appeal of his request for a third expert witness to be heard.

The Court observes that the applicant did not raise this complaint before the Supreme Court. The applicant has not, therefore, complied with the requirement of exhaustion of domestic remedies.

It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court,

DECIDES TO ADJOURN the examination of the applicant’s complaint that he was not given the opportunity to respond to the advisory opinion of the Procurator General at the Supreme Court.

Unanimously ,

DECLARES INADMISSIBLE the remainder of the application.

Michael O’Boyle Elisabeth Palm Registrar President