RESOLUTION DH (97) 345

HUMAN RIGHTS

APPLICATION No. 18441/91

OUENDENO AGAINST FRANCE

(Adopted by the Committee of Ministers on 11 July 1997

at the 597th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 32 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the report drawn up on 31 August 1994 by the European Commission of Human Rights in accordance with Article 31 of the Convention relating to the application lodged on 7 May 1991 by Mr Alexis Ouendeno against France (Application No. 18441/91);

Whereas on 14 October 1994 the Commission transmitted the said report to the Committee of Ministers and whereas the period of three months provided for in Article 32, paragraph 1, of the Convention has elapsed without the case having been brought before the European Court of Human Rights in pursuance of Article 48 of the Convention;

Whereas in his application, as declared admissible by the Commission on 2 March 1994, the applicant complained of the absence of public hearings in certain proceedings before the disciplinary bodies of the Medical Association’s National Council;

Whereas in its report the Commission expressed, unanimously, the opinion that there had been a violation of Article 6, paragraph 1, of the Convention;

Whereas at the 527th meeting of the Ministers’ Deputies, the Committee of Ministers, agreeing with the opinion expressed by the Commission, held, by a decision adopted on 7 February 1995, having voted in accordance with the provisions of Article 32, paragraph 1, of the Convention, that there had been in this case a violation of Article 6, paragraph 1, of the Convention;

Whereas the Committee of Ministers examined the proposals made by the Commission when transmitting its report as regards just satisfaction to be awarded to the applicant, proposals supplemented by a letter of the President of the Commission dated 7 July 1995;

Whereas at the 546th meeting of the Deputies, the Committee of Ministers, agreeing with the Commission’s proposals, held, by a decision adopted on 13 October 1995, in accordance with Article 32, paragraph 2, of the Convention, that the Government of France was to pay the applicant as just satisfaction, within three months, 7 500 French francs in respect of non-pecuniary damage and 20 000 French francs in respect of costs and expenses, namely a total sum of 27 500 French francs;

Whereas the Committee of Ministers invited the Government of France to inform it of the measures taken following its decisions of 7 February and 13 October 1995, having regard to France’s obligation under Article 32, paragraph 4, of the Convention to abide by them;

Whereas during the examination of the case by the Committee of Ministers, the Government of France gave the Committee information about the measures taken in consequence of its decision of 7 February 1995, which information appears in the appendix to this resolution;

Whereas the Committee of Ministers satisfied itself that by 16 March 1996 the Government of France had paid the applicant the total sum of 27 500 French francs as just satisfaction,

Declares, having taken note of the measures taken by the Government of France, that it has exercised its functions under Article 32 of the Convention in this case;

Authorises the publication of the report adopted by the Commission in this case.

Appendix to Resolution DH (97) 345

Information provided by the Government of France

during the examination of the case of Ouendeno

by the Committee of Ministers

Articles 13, 15 and 26 of Decree No. 48-1671 of 26 October 1948, from which the violation found in this case originates, were amended in 1993 by Decree No. 93 ‑ 181 of 5 February 1993: henceforth hearings before a body of the Medical Association sitting to determine disciplinary charges are held in public, the chairman of the body in question may, however, of his own motion or on an application by one of the parties or by the person whose complaint has led to the case being brought before a regional council, exclude the public from all or part of the hearing in the interests of public order or where respect for private life or medical confidentiality so justifies.

Furthermore, Articles 13 and 28, as amended, now provide that decisions are made public, but that the bodies in question may decide not to include in the certified copies any details, such as surnames, which might be incompatible with respect for private life or medical confidentiality.

The Government of France also recalls that by its judgment of 14 February 1996 in the case of Maubleu, the Conseil d’Etat accepted the applicability of Article 6, paragraph 1, of the Convention to ordinal disciplinary jurisdictions, and that the Committee of Ministers’s decisions and the report of the Commission have been transmitted to the authorities concerned. Moreover, the judgment of the Court of 26 September 1995 in the case of Diennet, which also concerned public hearings before the bodies of the Medical Association, has been published in the Gazette du palais (No. 5, Sept-Oct 1996, pp. 529-532).

The Government of France is of the opinion that, having regard to the status of the Convention and the case-law of the Strasbourg bodies in domestic law, the ordinal disciplinary jurisdictions will not fail to apply the rules relating to public hearings in accordance with this case-law.