SEPARATE OPINION OF JUDGE MATSCHER

(Translation)

A. I am not, for the time being, in a p osition to furnish an abstract, comprehensive definition of the concept of "civil rights and obligations" within the meaning of Article 6 para. 1 (art. 6-1) of the Convention.  I should like, however, to try to explain the reasons which prevent me, to my great regret, from accepting the definition of this concept which the Court has just given, even though it limited itself to the requirements of the present judgment.

I think that one must start by noting that the wording of Article 6 para. 1 (art. 6-1) is not clear and unequivocal.  To arrive at its meaning, recourse must be had to the methods of interpretation recognised in international law.

Literal, grammatical interpretation does not take us very far.

There is an abundance of writings on the historical background to Article 6 (art. 6).  They show us that no very specific and exact ideas on the scope of this provision emerge from the travaux préparatoires .

The materials on the Convention do not, I believe, suppor t the view (already expressed in the Ringeisen judgment and repeated in paragraph 90 of the present judgment) that a comparison of the two official texts may point to interpretation in a particular direction.

The teleological interpretation on which the j udgment appears to be principally based (although this is not stated in explicit terms) is limited by the Convention system.  The basic idea behind such an interpretation is that the Convention is chiefly intended to protect the individual against the authorities and to provide him with certain guarantees vis-à-vis the latter. This means that the Convention should apply whenever the individual's position vis-à-vis the authorities is in question.  However, to draw specific conclusions from this principle, one must above all demonstrate that a right which the Convention was intended to guarantee in a certain way is involved - otherwise, there is a danger of going beyond teleological interpretation and venturing into the field of legislative policy.

The reasoning in the judgmen t does not demonstrate that the applicant's legal position in the present case is also covered by Article 6 para. 1 (art. 6-1) of the Convention.

The judgment starts by reaffirmin g the principle of "autonomous" interpretation of the terms of international conventions in general and of the concept of "civil rights and obligations" within the meaning of Article 6 para. 1 (art. 6-1) of the Convention in particular. This is a principle with which I am wholly in agreement (even though I must say that I do not regard the Court's definition of it as wholly unambiguous).  In my view, autonomous interpretation means, above all, that the provisions of international conventions must not be interpreted solely by reference to the meaning and scope which they possess in the domestic law of the contracting State concerned, but that reference must be made, "first, to the objectives and scheme of the Convention and, secondly, to the general principles which stem from the corpus of the national legal systems" (judgment of the Court of Justice of the European Communities, 14 October 1976, (Reports) 1976, p. 1552).  Putting it differently, one must look for the "common denominator" behind the provisions in question, since it is legitimate to suppose - in the absence of any legal definition in the Convention itself - that such is the meaning which the Contracting States wished these provisions to have.  This "common denominator" can be found through a comparative analysis of the domestic law of the Contracting States.  This being so, the result of such an investigation can never be a concept which is totally at variance with the legal systems of the State concerned.  In my view, however, the judgment does not take sufficient account of this requirement.  It arrives at its conclusion - that Article 6 para. 1 (art. 6-1) of the Convention is applicable to the case which forms the subject of the present application - only by reliance on two types of assertion, both of which I regard as highly questionable:

l. The activities of a doctor, whether as practitioner or as director of a private clinic, are said to have a "private-law" character, apparently by virtue of the fact that these activities chiefly amount (from the legal point of view) to the maintenance of private-law relationships with his clients (paragraphs 92 and 93 of the judgment).

However, this argument seems to me to c onfuse the special relationship between a doctor and his patients, which is undeniably a matter of private law (insofar as the doctor concerned is not a civil servant), with his professional status which - regardless of whether the State medical service or private practice is concerned - is regulated (each type to a varying extent) by public law in most, if not all, States.

Thus, when the Court states that the doctor's professional situation is to be classified as a civil right within the meaning of Article 6 para. 1 (art. 6-1) of the Convention, it is creating a concept of "civil right" which is not merely "autonomous" within the meaning of the Convention, but which has no foundation in the legal systems of the vast majority of Contracting States.

2. When transposing the conclusions re ached in the Ringeisen judgment (Series A no. 13, p. 39, para. 94) to the present case, the Court states (paragraph 90 of the judgment) that "all proceedings the result of which is decisive for private rights and obligations" should themselves be regarded as cases concerning civil rights within the meaning of Article 6 para. 1 (art. 6-1) of the Convention.  This, in my view, is an assertion too vague, too elastic, to permit the drawing of any exact conclusions.  What does the phrase "is decisive for private rights and obligations" actually mean?

In the Ringeisen case, the conclusi on drawn by the Court from this assertion seems to me acceptable and, possibly, even justified since, in that case, the administrative proceedings bore directly on what was undeniably a private-law contract and had no other object.

The situation in the König case is fundamentally different: the ob ject of the administrative proceedings was not one or more specific private-law relationships between Dr. König and his patients; the proceedings were not intended to "be decisive" for these relationships (on which they had only an indirect bearing).  The administrative proceedings in question were solely concerned with Dr. König's professional situation as a practitioner and as the director of a private clinic. (There would only have been an analogy between the König and the Ringeisen cases if the latter had been concerned with Mr. Ringeisen's status as an estate agent - which it was not).

In this connection, and contrary to wh at would seem to be the Court's opinion (paragraph 91 of the judgment), I do not believe, either, that a distinction can be made (as far as Article 6 of the Convention is concerned) (art. 6) between the grant and the withdrawal of an authorisation (to practise medicine or to manage a clinic). Professional status or the legal syst em governing a gainful activity form an indissoluble whole.  The grant and the withdrawal of the authorisation needed to practise or carry on the activity are merely two particular aspects of such status or system: the grant amounts to a finding that the requisite conditio ns exist and the withdrawal, on the other hand, to a finding that they have ceased to exist.  From a qualitative standpoint, both have the same bearing on private-law situations.  In conclusion, it is not my impression that the authors of the Convention intended to bring all cases ("contestations") relating to undoubted public-law situations under Article 6 (art. 6) of the Convention, simply by reason of the fact that the outcome of such a case might affect the private-law relationships of the person in question.  In any event, in the majority of the Convention States, the relevant proceedings are not organised in the manner envisaged in Article 6 (art. 6) (decision by a tribunal, public hearing, judgment pronounced publicly); this means, according to the conclusions reached in this judgment, that all these States - even when they possess a highly developed system for administrat ive proceedings - would be in a position that did not comply with Article 6 (art. 6) from the very moment that they ratified the Convention.  This seems to me a clear argument in favour of excluding this type of case from the ambit of Article 6 (art. 6) of the Convention.

There is still one objection which ha s to be refuted: when the scope of Article 6 para. 1 (art. 6-1) of the Convention is discussed, it is often argued that the individual has more need of the procedural guarantees provided by Article 6 para. 1 (art. 6-1) in the case of disputes with the authorities than in the case of disputes with his neighbours: one cannot therefore suppose that the Convention was intended to establish a system of guarantees specifically for the latter, but not for the former.

I would explain this situation as follows: the history of law (at least, of continental law) shows very clearly that the principles of oral proceedings, publicity and judgment by an independent tribunal in civil matters are merely a corollary of these same principles in criminal cases.  When a demand was raised, starting with the French Revolution in 1789 and during the European revolutions of 1848, for legal proceedings which respected these principles, criminal proceedings alone were envisaged.  No one would have manned the barricades to secure oral, public proceedings in civil cases! The only reason for introducing these principles for civil cases also – and sometimes even guaranteeing them in constitutional charters - was to follow the pattern adopted for criminal proceedings.  Furthermore – and this is also borne out by experience with judicial tribunals – the importance of these principles has always been relatively limited in civil cases (though it must be admitted that some of these principles, in particular, are of value for civil procedure).

I think that this is the general st andpoint which we must adopt to understand why the authors of the Convention, too, whilst retaining for the guarantees of Article 6 (art. 6) their primary purpose, did not restrict those guarantees to criminal cases but extended them to all cases which were generally regarded in most Contracting States as coming within the competence of the courts.

I admit that this consideration of the Convention's historical dimension leads to a relatively narrow concept of "civil rights", but I believe that it reflects the meaning and scope of Article 6 para. 1 (art. 6-1), de lege lata.

Nor would I deny that, from the de lege ferenda standpoint, an extension of the protection of the individual's rights and of the related procedural guarantees, also vis-à-vis the public authorities, is an ideal which should be pursued, especially in view of the latter's constantly increasing encroachment in all areas.  Recognising the validity of this aspiration, the Court, whose task is to ensure respect of the rights guaranteed by the Convention, is free to employ even a broad interpretation of these guarantees (this it did, rightly in my view, in the Ringeisen case), as long as such interpretation remains covered by the Convention itself.  On the other hand, it is for the Contracting States to go further than the Convention if they find this necessary and if they agree on an amendment thereto.

Perhaps it is also going beyond the fu nction of a judgment (or, to be more exact, a separate opinion) to raise de lege ferenda considerations and to speculate on the possible consequences of an overbroad interpretation of the concept of civil rights.  I should like, nonetheless, to make a few brief comments.

I have doubts as to the utility of invariably using a procedure which fully matched the requirements of Article 6 para. 1 (art. 6-1) of the Convention in many of the cases which w ould qualify as "civil law" cases if the line laid down by the Court in the present instance were followed (those concerned with authorisations or concessions of all kinds, insofar as the latter have a bearing on private-law situations).  For some of them (particularly professional and disciplinary cases), a procedure of this kind (public and necessarily conducted before a court) would, perhaps, hardly be in the best interests of the persons concerned.

I fully agree that, in these cases too, fair judgment must be given within a reasonable time, following a procedure which gives the person concerned every possibility of asserting his rights and that the decision of the competent authority (when it is administrative in character) should be subjected to review by an independent body (that is, to review by a court).  I entirely fail to see however, why the procedure in question should invariably meet all the other requirements of Article 6 para. 1 (art. 6-1) (oral and public proceedings, public pronouncement of judgment).

De lege ferenda, the above considera tions would seem to suggest the need for a revision of Article 6 (art. 6) of the Convention which would draw the following distinction (which is not possible under Article 6 as it stands) (art. 6):

(a) criminal and civil cases (i.e. c ases traditionally heard by the courts): entitlement to all the guarantees provided for in Article 6 (art. 6);

(b) disputes on other matters (administ rative cases): entitlement to a procedure determined by law and guaranteeing a fair hearing of the parties, judgment within a reasonable time, right to judicial review of the administrative decision.

B. Having given a negative vote on questions 1 and 2, it was only logical that I should also give a negative vote on questions 3 and 4, as formulated in the operative provisions of the judgment.  I should like, however, to make it clear that I share the Court's unanimous view that, in the case both of the proceedings relating to the withdrawal of the authorisation to run the clinic and of the proceedings relating to the withdrawal of the authorisation to practise, the "reasonable time" referred to in Article 6 para. 1 (art. 6-1) was exceeded (insofar as this provision might have been applicable in the present case).