SEPARATE OPINION OF JUDGE PETTITI

(Translation)

I voted with the majority of the Court on the applicability of Article 6 § 1 (art. 6-1). However, I find it necessary to indicate how I interpret this point as far as the public conduct of proceedings is concerned. The proceedings before the Court of Cassation were conducted in public, but in the context of the hearing of an appeal on a point of law which led to no more than a review of lawfulness.

The question of the public conduct of the proceedings, within the meaning of Article 6 (art. 6), arose insofar as Belgian law does not make provision for an appeal to a tribunal competent to determine all the aspects of the matter ( recours de plein contentieux , "full review").

The full review is, in fact, necessary in order to ensure that the professional body does not apply its powers for an improper purpose by, for example, imposing a sanction as a disciplinary measure for conduct which in reality amounts to the adoption of a particular viewpoint on a matter concerning the internal organisation of the profession; this kind of review is the counterpart of the jurisdictional prerogatives conferred on the professional bodies.

If the procedure before professional bodies includes at the final instance a full review, then the fact that only that stage of the proceedings is conducted in public will be enough to satisfy the rule laid down in the Article (art. 6).

One must, in fact, not overlook the specific character of disciplinary proceedings nor the fact that they form part of a tradition which has to have regard for the basic aim of professions devoted to the mission of providing public health-care or the mission of administering justice. The principle of judgment by one ’ s peers is an inherent necessity in order to protect professional secrecy, confidential information imparted by third parties and the reputation of members of professions.

To conduct the hearings before the council of a professional organisation and before the appeal body in public, when guilt had not yet been determined at final instance, would be prejudicial to the career of the person concerned if he were finally found to be innocent. It is not a sufficient safeguard to leave to the person against whom proceedings have been instituted the choice between having them conducted in private and having them conducted in public. At the very outside, when looking for new solutions to be laid down in legislation or regulations, one might contemplate, in the absence of a full review, holding the appeal stage of the proceedings in public, but in that case with access to the hearings being restricted to members of the profession only.

However, the solution which best marries respect for the tradition of the professions and of professional tribunals with respect for the rules of a fair trial under the European Convention is, in my view, one which provides that, where there may be a full review at the conclusion of the proceedings, this final stage alone shall be conducted in public.

DISSENTING OPINION OF JUDGE SIR VINCENT EVANS

1. I agree with the judgment of the Court that there was no violation of Article 11 (art. 11) of the Convention.

2. I regret, however, that I am unable to share the opinion of the majority of the Court that there has been a violation of Article 6 § 1 (art. 6-1). In my view, Article 6 (art. 6) is not applicable in the present case, because the proceedings complained of by the applicants were not concerned with the determination of either civil rights or obligations or of a criminal charge within the meaning of that Article (art. 6).

3. The concept of "civil rights and obligations" in Article 6 (art. 6) has been taken by the Court as referring to rights of a private nature, though the Court has left open the question whether the concept within the meaning of that provision extends beyond such rights (see Ringeisen judgment of 16 July 1971, Series A no. 13, p. 39, § 94; König judgment of 28 June 1978, Series A no. 27, p. 32, § 95; and paragraphs 44 and 48 of the present judgment).

4. The interpretation of the words "civil rights and obligations" as referring to private rights and obligations is consistent with the French text of Article 6 (art. 6) (" droits et obligations de caractère civil") and is borne out by the negotiating history of the Article (art. 6) which supports the view that a restrictive meaning should be put upon these words, particularly in regard to matters within the field of public, including administrative, law. I would also endorse the proposition that it is not enough for the dispute or the proceedings to have a tenuous connection with or remote consequences affecting civil rights or obligations, but such rights and obligations must be the object of the "contestation" (dispute) and the result of the proceedings must be directly decisive for such a right (cf. paragraph 47 of the judgment). Where I disagree with the majority of the Court is in their conclusion that the determination of a private right was the object of the dispute or proceedings in the present case.

5. The proceedings in question were conducted under Royal Decrees regulating the Ordre des médecins in Belgium and for that purpose conferring disciplinary powers on organs of the Ordre "to ensure observance of the rules of professional conduct for medical practitioners and the upholding of the reputation, standards of discretion, probity and dignity of the members of the Ordre " (paragraph 24 of the judgment). The proceedings before the Provincial and Appeals Councils and those before the Court of Cassation were therefore concerned with matters of public law. Their object was disciplinary - to ensure the observance of rules of professional conduct - and not the determination of private rights. The fact that their outcome could incidentally affect rights of a private character did not, in my opinion, suffice to bring them within the scope of Article 6 § 1 (art. 6-1).

6. The effect of the judgment is to extend the application of Article 6 § 1 (art. 6-1) to proceedings of a kind to which, in my view, it was not intended to apply and to which its requirements, particularly as regards publicity, are not always appropriate. For instance, in disciplinary cases it may not always be necessary in the public interest or desirable in the interest of the individual concerned that the decision should be made public, particularly if he has been found not to be guilty of any misconduct. The application of Article 6 § 1 (art. 6-1) to disciplinary cases may also give rise to undue difficulties as regards the composition of disciplinary organs of professional bodies and because such organs are not always "established by law".

7. It remains to consider whether the disciplinary proceedings in the present case involved the determination of any criminal charge against the applicants. In view of its finding that the proceedings in question concerned the determination of civil rights and obligations, the Court found it superfluous to decide the issue (paragraph 53 of the judgment). As noted by the Court, the Commission, when deciding on the admissibility of the applications, stated that the disciplinary organs of the Ordre had not been required to determine criminal charges (paragraph 52 of the judgment). I see no reason to disagree with the Commission. In the case of Engel and others, although the proceedings complained of were conducted under disciplinary law, the Court held that the charges against some of the applicants did come within the "criminal" sphere since their aim was the imposition of serious punishments involving deprivation of liberty (Series A no. 22, p. 36, § 85). In the present case, neither the offences charged nor the sanctions applied by the disciplinary organs were of a criminal character. It is true that Dr. Le Compte ’ s refusal to comply with the measures imposed by the Ordre led to his being charged subsequently with criminal offences and sentenced to terms of imprisonment and fines, but there was no complaint that the proceedings before the Belgian criminal courts failed to comply with the requirements of Article 6 (art. 6).

8. For these reasons I conclude that there was no violation of Article 6 (art. 6) of the Convention.