Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12715/87

by Pieter Edzo RAUWERDA

against the Netherlands

The European Commission of Human Rights sitting in private

on 6 March 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 31 December 1986

by Pieter Edzo RAUWERDA against the Netherlands and registered

on 5 February 1987 under file No. 12715/87;

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 applicant is a Dutch citizen, born in 1913 and presently

residing in Groningen, the Netherlands. He is represented in the

proceedings before the Commission by Mr. L. van Heijningen, a lawyer

practising in The Hague.

The facts, as submitted by the applicant, may be summarised as

follows:

The applicant is a medical practitioner. Since 1979 he has

treated drug addicts.

On 10 January 1983 a complaint against the applicant was

lodged with the Medical Disciplinary Board (Medisch Tuchtcollege) of

Groningen. The complaint was deposited by both the Regional Medical

Inspector of Public Health (Geneeskundig Inspecteur van de

Volksgezondheid) and the Regional Public Health Inspector for

Medicines (Inspecteur van de Volksgezondheid voor de Geneesmiddelen).

It was alleged that the applicant had prescribed medicines in

contravention of standards of due care, had not consulted his

patients' general practitioners and had not ensured that these

patients received psychological help.

In its decision of 17 December 1984 the Medical Disciplinary

Board declared the complaint relating to the prescription of medicines

inadmissible and the complaint relating to the practice of medicine

ill-founded.

The Health Inspectors appealed to the Central Medical

Disciplinary Board (Centraal Medisch Tuchtcollege). In its decision

of 29 May 1986, pronounced publicly on 21 August 1986, the Central

Medical Disciplinary Board declared the complaint relating to the

prescription of medicines admissible but ill-founded. It considered

the other complaint partly well-founded, namely insofar as it related

to the fact that the applicant had not consulted the general

practitioners dealing with his patients and had not ensured that these

patients received psychological help. It held that, thereby,

the applicant had undermined public faith in the medical profession,

which is a disciplinary offence under the Medical Disciplinary Act

(Medische Tuchtwet). It reprimanded the applicant.

COMPLAINTS

The applicant complains that the Health Inspectors were

represented by a lawyer, which, in the present case, is in violation

of Dutch law; that under Dutch law the President of the Central

Medical Disciplinary Board must open a preliminary investigation,

which did not happen in the present case; that the complaint insofar

as it had been lodged by the Regional Public Health Inspector for

Medicines should have been declared inadmissible; that concerning this

complaint, the Central Medical Disciplinary Board considered that,

although the way in which the applicant had acted with regard to the

prescription of medicines could raise doubts as to his exercise of due

care, it could not be considered that, in concrete cases, he had

acted wrongly and in contravention of standards of due care, which

is, according to the applicant, inadmissible since this consideration

will discredit him; that in most cases he did consult the General

Practitioners dealing with his patients; that the consideration of the

Central Medical Disciplinary Board that the applicant should not deal

with patients who do not allow him to consult their General

Practitioners brings him into a moral conflict; that he himself gives

his patients a socio-psychiatric treatment that is not worse than that

given by official institutions; that the treatment of drug addicts by

the State is dealt with differently by the authorities than the

treatment given by the applicant, which was not taken into

consideration by the Central Medical Disciplinary Board; and that, in

violation of Dutch law, the Central Medical Disciplinary Board's

decision was not pronounced publicly within three weeks after the

hearing.

The applicant further complains that the complaints against

him were lodged on 10 January 1983 and that the decision of the

Central Medical Disciplinary Board was pronounced on 21 August 1986,

which exceeds a reasonable time; that the hearing was not public; and

that it should have been possible to appeal against the decision of

the Central Medical Disciplinary Board, as this decision was

discreditable and ill-founded.

The applicant invokes Article 6 of the Convention.

THE LAW

The applicant has complained of a decision of the Central

Medical Disciplinary Board, pronounced publicly on 21 August 1986 and

of the proceedings concerned. He has invoked Article 6 (Art. 6) of the

Convention.

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 in the present case the Central

Medical Disciplinary Board merely reprimanded the applicant and had no

authority to impose a more severe measure. The Commission is,

therefore, of the opinion that the proceedings before the Central

Medical Disciplinary Board did not involve a determination of the

applicant's civil rights and obligations within the meaning of Article

6 para. 1 (Art. 6-1) of the Convention, even though the proceedings may have

indirect consequences as to his professional reputation.

On the question whether, in the present case, the Central

Medical Disciplinary Board has, in fact, determined a criminal charge

against the applicant the Commission refers to the criteria set out by

the European Court of Human Rights in its judgment of 8 June 1976 in

the case of Engel and others:

"a) whether the provision defining the disciplinary offence

charged belongs, according to the system of the respondent

State, to criminal law, disciplinary law or both

concurrently;

b) the very nature of the offence;

c) the degree of severity of the penalty that the person

concerned risks incurring" (Series A No. 22, p. 35,

para. 82).

The Commission notes that in the present case the applicant

was charged with having violated a provision of the Medical

Disciplinary Act. This Act does not exclude the liability of a

medical practitioner under penal law or civil law. The disciplinary

offence of which the applicant was convicted is limited and linked to

the exercise of the profession of medical practitioners. The measure

imposed was not a severe one and the applicant did not risk a more

severe measure than a reprimand before the Central Medical

Disciplinary Board. It follows that in view of the above criteria the

applicant was not the object of a criminal charge within the meaning

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

The Commission is, therefore, of the opinion that Article 6 (Art. 6) of

the Convention does not apply in the present case. It follows that the

application is as a whole 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

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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RAUWERDA v. THE NETHERLANDS

RAUWERDA v. THE NETHERLANDS

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