DISSENTING OPINION OF JUDGE MULARONI

(Translation)

I am unable to agree with the conclusions reached by my colleagues in the present case.

1. Whether the applicant is a “victim”

Mrs Chevrol, a French national, qualified as a doctor in Algeria in 1969 after graduating in medicine from the University of Algiers. On 17 February 1987 she applied for the first time to the Bouches-du-Rhône département council of the ordre des médecins for registration as a member of the ordre .

The département council refused her application on the ground that, although she was French, she did not have the appropriate French medical qualification and was therefore required to apply under Article L. 356, point (2), of the Public Health Code (in force until 22 June 2000), which provided that the Minister for Health could, on an individual basis and subject to an annual limit, authorise practitioners who did not satisfy the statutory nationality and qualification requirements to practise medicine. The applicant made some ten unsuccessful applications to the Minister for Health for such authorisation.

On 1 June 1995 the applicant submitted a further application to the département council, relying for the first time on the Government Declarations of 19 March 1962 on Algeria (the “Evian Accords”), and, in particular, on the Government Declaration on Cultural Cooperation between France and Algeria, of which Article 5 of Part I provides: “Academic diplomas and qualifications obtained in Algeria and France under the same conditions as regards curriculum, attendance and examinations shall be automatically valid in both countries.” Her application was refused on 16 June 1995. On 13 February 1996 the applicant applied to the disciplinary section of the National Council of the ordre des médecins , asking it to set aside the decision of 17 December 1995 in which the Provence-Alpes-Côte d'Azur-Corse regional council had rejected her application to set aside the Bouches-du-Rhône département council's refusal to register her. In a decision of 20 March 1996 the disciplinary section of the National Council of the ordre des médecins refused her application. On 3 June 1996 the applicant applied to the Conseil d'Etat for judicial review of that decision. In a judgment of 9 April 1999 the Conseil d'Etat refused the application, considering itself to be bound by the declaration of the Minister for Foreign Affairs to the effect that the provisions of Article 5 of the “Evian Accords” could not be regarded as having been in force on the date of the decision complained of, seeing that on that date the reciprocity requirement in Article 55 of the Constitution had not been satisfied and that, accordingly, the applicant was not entitled to rely on those provisions.

In the meantime, in a ministerial order of 22 January 1999 (published in the French Official Gazette on 30 January 1999) the applicant had been authorised to practise as a doctor in France, pursuant to Article L. 356, point (2), of the Public Health Code. She applied to the Bouches-du-Rhône département council of the ordre des médecins for registration as a member of the ordre . In a decision of 12 April 1999 the Bouches-du-Rhône département council registered the applicant. On 9 August 1999 the same body recognised the applicant's abilities as an orthopaedic surgeon by designating her as a doctor specialising in orthopaedic surgery, on the basis of her qualifications and professional experience.

By January 1999, and hence before the Conseil d'Etat had given judgment (on 9 April 1999), the applicant had obtained satisfaction, and from that point onwards, in my opinion, she had no further cause of action, having resolved the matter at domestic level.

I consider that she was never a “victim” within the meaning of Article 34 of the Convention, as her case was settled at national level before she had exhausted domestic remedies; at the time when she lodged her application with the Commission (4 March 1996), she had not exhausted domestic remedies, and by the time the application was registered (24 June 1999), she was no longer a “victim”.

I am aware of the Court's case-law to the effect that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, among other authorities, Lüdi v. Switzerland , judgment of 15 June 1992, Series A no. 238, p. 18, § 34).

However, I consider that that case-law does not apply in the instant case, in which the applicant, relying on Article 6 § 1 of the Convention, complained of a violation of her right to a fair hearing.

I would observe that in cases concerning, for example, the unfairness of criminal proceedings following which the applicant is nonetheless acquitted, the terms used by the Court to reject the application are usually the following: “The Court reiterates that an applicant who is acquitted or is not committed for trial can no longer claim to be a 'victim', within the meaning of Article 34 of the Convention, on account of the unfairness of the proceedings.”

In civil proceedings, I would also note, for example, that where an applicant, after lodging his application with the Court, is refunded an amount determined by the national courts, the Court will simply dismiss complaints under Article 6 § 1 of the Convention on the ground that the applicant is no longer a “victim”, referring to its settled case-law to the effect that an applicant who obtains redress at domestic level for the alleged violation can no longer claim to be a “victim” of a violation of the rights set forth in the Convention.

I consider that the Court should have adopted a similar approach in this case.

In my opinion, the Court's concern has always been to ensure that, in substance, the alleged violation has genuinely and totally ceased to exist and that there is no danger of its recurring (for the applicant, of course). In the instant case, the applicant was authorised to practise as a doctor. She was no longer adversely affected by the domestic decision complained of.

In my opinion, therefore, the applicant is not a “victim” within the meaning of the Convention.

2. Applicability of Article 6 § 1 of the Convention

The case concerns proceedings for registration as a member of the ordre des médecins .

The Court's recent inadmissibility decision of 25 April 2002 in Delord v. France (application no. 63548/00) related to Article L. 356, point (2), third paragraph, of the Public Health Code referred to above, which provided that the Minister for Health could, on an individual basis and subject to an annual limit, authorise practitioners who did not satisfy the statutory nationality and qualification requirements to practise medicine. The Court considered that Mrs Delord could not claim a right to practise as a doctor in France.

Admittedly, Mrs Delord's application was not based on Article 5 of the 1962 Government Declaration, but I wonder whether the present case merited a different conclusion as to the applicability of Article 6 § 1 of the Convention.

It seems to me that the Court has hitherto always maintained that initial registration as a member of the ordre is not a right guaranteed by the Convention and has accordingly found Article 6 § 1 of the Convention to be inapplicable to disputes of this kind.

It also seems to me that in such cases the Court has never made a distinction between the nature of the authorities (judicial or otherwise) called upon to determine the matter at domestic level. In the recent inadmissibility decision of 28 February 2002 in San Juan v. France ((dec.), no. 43956/98, ECHR 2002-III), which reaffirmed the position adopted in Van Marle and Others v. the Netherlands (judgment of 26 June 1986, Series A no. 101), the Court held that “the question whether the Board of Appeal ruled on matters susceptible to judicial assessment was decisive for the applicability of Article 6 § 1, irrespective of whether the Board itself had judicial status”. It concluded: “An assessment of this kind, evaluating knowledge and experience for carrying on a profession under a particular title, is akin to a school or university examination and is so far removed from the exercise of the normal judicial function that the safeguards in Article 6 cannot be taken to cover resultant disagreements.”

It is true that in De Moor v. Belgium (judgment of 23 June 1994, Series A no. 292-A) the Court held that Article 6 § 1 was applicable and had been infringed, observing: “Where legislation lays down conditions for the admission to a profession and a candidate for admission satisfies those conditions, he has a right to be admitted to that profession.” But that case concerned a Belgian applicant who had obtained a law degree in Belgium and was applying for enrolment on the list of pupil advocates in Hasselt (Belgium), having obtained a favourable opinion from the Chairman of the National Bar Association.

I wonder whether it is desirable to extend that approach to the present case, bearing in mind, firstly, the fact that the applicant did not have a French qualification, and, secondly, the wording of Article 5 of Part I of the “Evian Accords”, which provides: “Academic diplomas and qualifications obtained in Algeria and France under the same conditions as regards curriculum, attendance and examinations shall be automatically valid in both countries.” One very important requirement must first be verified for each qualification, namely whether the conditions were the same in terms of curriculum, attendance and examinations, and authorisation must then be obtained from the minister, subject to an annual quota, in accordance with the procedure laid down in Article L. 356, point (2), of the Public Health Code. That interpretation follows from the wording of Article L. 356, point (2); it was confirmed at the hearing by the Government's representative and was not contested by the applicant. It therefore seems to me that the circumstances of the present case are not very different from those in Delord .

I consider that Mrs Chevrol did not have a genuine civil right protected by the Convention, in the sense that the recognition of diplomas and qualifications obtained abroad and, consequently, the right to practise medicine in France remained subject to conditions. I feel that extending the applicability of Article 6 § 1 to this case amounts in fact to acknowledging that the Court has jurisdiction to deal with the highly sensitive issue of the refusal by a State Party to the Convention to recognise any professional qualifications and diplomas obtained in another country, irrespective of whether that country is a party to the Convention.

I therefore consider that Article 6 § 1 is not applicable in the present case.

3. The merits

I am unable to agree with my colleagues' findings on the merits either.

Admittedly, the question of interpreting treaties does appear to have evolved over the years (in the past, this was the task of the political authorities, not only in France, until the Conseil d'Etat 's GISTI judgment of 29 June 1990, but in almost every country; the matter formed the subject of the Court's Beaumartin v. France judgment of 24 November 1994, Series A no. 296-B). I can understand that, in the light of such developments, it might be felt that the time has come to hold that even the referral of a preliminary question to the Minister for Foreign Affairs for an assessment of reciprocity in respect of the other contracting party, the minister's reply being binding on the judge dealing with the case, is in breach of Article 6 of the Convention.

However, I consider that approach inappropriate for the following reasons.

Article 55 of the French Constitution provides that treaties or agreements that have been lawfully ratified or approved are, upon publication, to prevail over Acts of Parliament, “subject ... to [their] application by the other party”. To assess whether the reciprocity requirement has been satisfied and to draw the necessary inferences, the court submits a preliminary question to the Minister for Foreign Affairs. It is bound by the minister's reply.

The practice of referring preliminary questions is guided by a concern not to interfere with international relations, in the same way that prerogative acts in the context of international relations are not open to challenge in the courts.

The system of referring preliminary questions has traditionally been used in two fields: interpreting treaties and assessing reciprocity.

In the first field, the interpretation of an ambiguous or unclear treaty, the Court called into question the referral system – which had, however, been discontinued at national level even before the Court's judgment (see the GISTI decision of 29 June 1990, Conseil d'Etat , full court) – and found against France in Beaumartin (cited above).

In my opinion, there are a number of reasons why the Beaumartin precedent should not be applied to the present case.

I consider that, while the interpretation of a treaty is a legal issue, the assessment of the reciprocity of an international treaty is an essentially political issue.

Furthermore, the parties only rarely have enough evidence of the situation in a foreign State, being unable to conduct the necessary investigations. It follows that a review of the factual data obtained, a task which may well be incumbent on the court, will in reality remain theoretical.

The assessment of the reciprocity requirement in Article 55 of the French Constitution entails examining whether or not an international undertaking has been applied on the basis of information about a foreign State's conduct, a process alien to the role of a court. The assessment of the conduct of a foreign State is more naturally a task for the diplomatic authorities than for the courts.

I would add that it is apparent from the Court's case-law that the right to a tribunal is not absolute but may be regulated by the Contracting States (see, among other authorities, Levages Prestations Services v. France , judgment of 23 October 1996, Reports of Judgments and Decisions 1996-V, p. 1543, § 40).

Even if one were to conclude that the right of access to a court had been restricted in the present case, that restriction in my opinion pursued a legitimate aim, that of observing the principle of the separation of powers.

That is why I consider that the Conseil d'Etat was entitled, without breaching the duty of independence imposed on it by, inter alia , Article 6 § 1 of the Convention, to consider itself to be bound by the opinion of the Minister for Foreign Affairs as to whether Algeria had implemented the “Evian Accords”.

I therefore consider that Article 6 § 1 of the Convention was not breached in the present case.