CONCURRING OPINION OF JUDGE DE MEYER

(Translation)

I. The right to engage in a professional activity must undoubtedly be regarded as a "civil right" within the meaning of Article 6 para. 1 (art. 6-1) of the Convention.

In this connection it matters little that the status of the profession in question in this case "has features [in Switzerland] which are undeniably of a public-law nature" or that "the applicant wished to work in the private sector, on the basis of contracts concluded between him and his patients" [1] .

The nature of the right in question would not have been any different if the applicant had wished to practise medicine on another "basis" or in the "public sector". Nor would it have been if the status of the medical profession did not embrace "public-law features" [2] .

II. Similarly, the Court did not have to ask itself, yet again, whether it was "a right which could be said, on arguable grounds, to be recognised under domestic law" and whether the dispute "was genuine and of a serious nature" [3] .

In the first place, it is not for us, but for the national courts to resolve questions of this type [4] . Secondly, the fact that a right does not seem to be recognised under the domestic legislation of a State cannot remove the latter ’ s obligation, in respect of this right, to ensure that the principles laid down in Article 6 para. 1 (art. 6-1) are applied [5] .

III. The right to a fair trial is so important that "there can be no justification for interpreting Article 6 para. 1 (art. 6-1) of the Convention restrictively" [6] .

The effective enjoyment of this right must be secured each time that the determination of a right is in issue. That was the case in this instance; it was sufficient to note that this was so.

As regards the rest, I should like to be permitted to refer, mutatis mutandis, to what I said in this connection in my separate opinion in the cases of Pudas v. Sweden [7] , H v. Belgium [8] and Allan Jacobsson v. Sweden [9] .

I would simply add that what I was "inclined to think" in November 1987 [10] as regards the "civil" character, within the meaning of the above-mentioned Article (art. 6-1), of rights and obligations has since become a profound conviction. All the rights and obligations which are not related more specifically to the determination of a "criminal charge" should be regarded as "civil rights".

[*]  The case is numbered 90/1991/342/415.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]   As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990 .

[*]  Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 254-B of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.

[1] Paragragh 25 of the judgment.

[2] It is interesting to note that, in a recent case, the Court would seem to have begun to accept that, at least in the pensions field, the legal position of "public sector" employees is the same as that of "private sector" employees: judgment of 26 November 1992 , Giancarlo Lombardo v. Italy , Series A no. 249-C, p. 42, para. 16.

[3] Paragraph 24 of the judgment.

[4] See in this connection my separate opinion annexed to the Allan Jacobsson v. Sweden judgment of 25 October 1989 , Series A no. 163, p. 24.

[5] See on this point the concurring opinion of Mr Lagergren , annexed to the Ashingdane v. the United Kingdom judgment of 28 May 1985, Series A no. 93, p. 27, and his separate opinion, approved by Mr Macdonald, annexed to the Lithgow and Others v. the United Kingdom judgment of 8 July 1986, Series A no. 102, p. 80, together with the joint separate opinion of Mr Lagergren , Mr Pinheiro Farinha , Mr Pettiti , Mr Macdonald, Mr Valticos and myself, annexed to the W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 39.

[6] Judgment of 13 October 1990 , Moreira de Azevedo v. Portugal , Series A no. 189, p. 16, para. 66.

[7] Judgment of 27 October 1987 , Series A no. 125, p. 21.

[8] Judgment of 30 November 1987 , Series A no. 127-B, pp. 48-49.

[9] Judgment of 25 October 1989 , cited above, loc. cit.

[10] Judgment of 30 November 1987 , cited above, p. 49, para. 4.