Disciplinary proceedings against health professionals
PROCEEDINGS BEFORE THE COMMISSION 22. Dr Diennet applied to the Commission on 18 April 1991. He alleged a violation of the right to a hearing in public and by an impartial tribunal, guaranteed in Article 6 para. 1 (art. 6-1) of the Convention. 23. The Second Chamber of the Commission declared the application (no. 18160/91) admissible on 2 December 1992 and, under Article 20 para. 4 (art. 20-4) of the Convention, subsequently relinquished jurisdiction in favour of the plenary Commission. In its report of 5 April 1994 (Article 31) (art. 31), it expressed the unanimous opinion that there had been a violation of the right to a hearing in public and, by fourteen votes to nine, the opinion that there had not been a violation of the right to an impartial tribunal. The full text of the Commission's opinion and of the partly dissenting opinion contained in the report is reproduced as an annex to this judgment (1). _______________ 1. Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 325-A of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry. _______________ FINAL SUBMISSIONS TO THE COURT 24. In their memorial the Government asked the Court "to reject Mr Diennet's application". 25. The applicant asked the Court to "hold that in the proceedings which ended with the Conseil d'Etat's judgment of 9 October 1990 there was a twofold violation by France of Article 6 (art. 6) of the European Convention on Human Rights, firstly in that the disciplinary tribunal did not hear his case in public, and secondly in that the disciplinary tribunal was not constituted impartially within the meaning of the said Article 6 (art. 6)". AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE CONVENTION 26. Dr Diennet complained that he had not had a public hearing by an impartial tribunal. He relied on Article 6 para. 1 (art. 6-1) of the Convention, which provides: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice." A. Applicability of Article 6 para. 1 (art. 6-1) 27. It is clear from the Court's settled case-law that disciplinary proceedings in which, as in the instant case, the right to continue to practise medicine as a private practitioner is at stake give rise to "contestations (disputes) over civil rights" within the meaning of Article 6 para. 1 (art. 6-1) (see, among other authorities, the König v. Germany judgment of 28 June 1978, Series A no. 27, pp. 29-32, paras. 87-95; the Le Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, pp. 19-23, paras. 41-51; and the Albert and Le Compte v. Belgium judgment of 10 February 1983, Series A no. 58, pp. 14-16, paras. 25-29). The applicability of Article 6 para. 1 (art. 6-1) to the circumstances of this case, which was in issue before the Commission but was not disputed before the Court, is therefore not in doubt. 28. The Court considers it unnecessary to determine whether, as the applicant maintained, there was any "criminal charge" against him within the meaning of Article 6 para. 1 (art. 6-1) of the Convention: as in the König, Le Compte, Van Leuven and De Meyere, and Albert and Le Compte cases (judgments previously cited, p. 33, para. 96, pp. 23-24, para. 53, and p. 17, para. 30, respectively), those of the Article 6 para. 1 (art. 6-1) rules which the applicant alleged to have been breached apply to both civil and criminal matters. B. Compliance with Article 6 para. 1 (art. 6-1) 29. Dr Diennet submitted that there had been a breach of Article 6 para. 1 (art. 6-1) both because the proceedings before the professional disciplinary bodies had not been public and because one of those bodies had not been impartial. 1. Holding of proceedings in public 30. The applicant complained that the proceedings before the Ile-de-France Regional Council and the disciplinary section of the National Council of the ordre des médecins had not been held in public. 31. The Government did not dispute the fact. They recognised, moreover, that the applicant could not be regarded as having tacitly waived a public hearing by not seeking one, inasmuch as the French rules expressly excluded one (see paragraph 20 above and, among other authorities and mutatis mutandis, the H. v. Belgium judgment of 30 November 1987, Series A no. 127-B, p. 36, para. 54). They considered, nevertheless, that the Conseil d'Etat had compensated for that shortcoming by sitting in public on 15 January 1988 and 15 October 1990. When sitting in disciplinary cases, the Conseil d'Etat had, they continued, powers of review that went beyond questions of law alone since it verified the accuracy of the facts which formed the basis of the charges and the correctness of the legal classification of those facts and also, where appropriate, reviewed the assessment made by the tribunal of fact, by checking that evidence had not been misinterpreted; it had proceeded in that manner in the instant case. In the alternative, the Government argued that, at all events, the misconduct of which the applicant had been accused related directly to practice of the medical profession and therefore came under the exceptions provided for in Article 6 para. 1 (art. 6-1). The disciplinary bodies of the ordre were under a duty to verify the factual accuracy of the charges against the applicant, against whom proceedings had been taken for having issued medical prescriptions for the treatment of obesity without examining his patients or following up their treatment. Specific examples therefore had to be cited during the proceedings, so that inevitably, if these had been held in public, professional confidentiality would have been jeopardised and patients' private lives intruded upon. 32. The Commission, referring to the Court's case-law on the matter, found that there had been a violation of the right to public proceedings. 33. The Court reiterates that the holding of court hearings in public constitutes a fundamental principle enshrined in paragraph 1 of Article 6 (art. 6-1) (see, as the most recent authority, the Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A no. 263, p. 19, para. 58). This public character protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Article 6 para. 1 (art. 6-1), namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention (see, for example, the Sutter v. Switzerland judgment of 22 February 1984, Series A no. 74, p. 12, para. 26). Admittedly, the Convention does not make this principle an absolute one, since by the very terms of Article 6 para. 1 (art. 6-1), "... the press and public may be excluded from all or part of the trial in the interests of morals ..., where the ... protection of the private life of the parties so require[s], or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice". 34. The Court takes account of several factors. Firstly, the Government did not dispute that the hearings before the disciplinary bodies of the ordre des médecins had not been held in public. Secondly, where the Conseil d'Etat hears appeals on points of law from decisions of the disciplinary section of the National Council of the ordre des médecins, it cannot be regarded as a "judicial body that has full jurisdiction", in particular because it does not have the power to assess whether the penalty was proportionate to the misconduct; the fact that hearings before it are held in public is therefore not sufficient to remedy the defect found to exist at the stage of the disciplinary proceedings (see, inter alia and mutatis mutandis, the Albert and Le Compte judgment previously cited, p. 16, para. 29, and p. 19, para. 36). Lastly, while the need to protect professional confidentiality and the private lives of patients may justify holding proceedings in camera, such an occurrence must be strictly required by the circumstances. In the instant case, however, as the applicant and the Commission rightly pointed out, the proceedings were to deal only with the "method of consultation by correspondence" adopted by Dr Diennet (see paragraph 8 above). There was no good reason to suppose that either the tangible results of that method in respect of a given patient or any confidences that Dr Diennet might have picked up in the course of practising his profession would be mentioned. If it had become apparent during the hearing that there was a risk of a breach of professional confidentiality or an intrusion on private life, the tribunal could have ordered that the hearing should continue in camera. At all events, the public was excluded because of the automatic prior application of the provisions of the Decree of 26 October 1948 (see paragraph 20 above). That decree was amended after the events in the instant case had occurred; with a number of strictly defined exceptions, hearings before a body of the ordre in disciplinary proceedings are now held in public (see paragraph 21 above). 35. In sum, there has been a breach of Article 6 para. 1 (art. 6-1) in that the applicant did not receive a "public" hearing before the Ile-de-France Regional Council and the disciplinary section of the National Council of the ordre des médecins. 2. Impartiality 36. The applicant did not contest the personal impartiality of the members of the disciplinary section of the National Council of the ordre des médecins as constituted when his case was referred back to it by the Court of Cassation. On the other hand, he did state that the combination of several factors objectively gave rise to very serious doubts about the impartiality of the section as such: not only had three of its seven members - including the rapporteur - heard the case on appeal but the second decision had been identical with the first one, except for the addition of a paragraph in which an amnesty that had been enacted in the meantime was taken into account. He maintained that the three members in question could have been replaced by substitutes. In this connection, he could not be blamed for not having challenged the three members, as, on the one hand, such a procedure - which was exceptional in French law - would have been bound to fail and, on the other hand, the defect relating to the reasons given for the disciplinary section's second decision did not become apparent to him until the decision was served on him, when he was able to see that it was identical with the first decision. 37. The Government and the Commission referred to the Ringeisen v. Austria judgment of 16 July 1971, according to which "... it cannot be stated as a general rule resulting from the obligation to be impartial that a superior court which sets aside an administrative or judicial decision is bound to send the case back to a different jurisdictional authority or to a differently composed branch of that authority" (Series A no. 13, p. 40, para. 97). The Government said that section 11 of the Law of 31 December 1987 reforming administrative proceedings expressly provided that if the Conseil d'Etat remitted a case to the same tribunal, the latter had to be differently constituted unless the nature of the tribunal made it impossible (see paragraph 17 above); and as it was the one and only body of its kind, the nature of the disciplinary section of the National Council of the ordre des médecins did make it impossible. As to the complaint about the reasoning, the Government pointed out that the first decision had been quashed only on account of a procedural irregularity and no new facts had been relied on after the case had been remitted, so that the similarity of the texts of the two decisions, even taken in conjunction with the membership of the disciplinary section as constituted on the second occasion, likewise did not justify any objective doubts as to the impartiality of the disciplinary section. 38. In the Court's view, no ground for legitimate suspicion can be discerned in the fact that three of the seven members of the disciplinary section had taken part in the first decision (see the Ringeisen judgment previously cited, loc. cit., and paragraph 12 above). Furthermore, even if the second decision had been differently worded, it would necessarily have had the same basis, because there were no new factors. The applicant's fears therefore cannot be regarded as having been objectively justified. 39. There has accordingly been no breach of Article 6 para. 1 (art. 6-1) in this respect. II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION 40. Article 50 (art. 50) of the Convention provides: "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." A. Damage 41. The applicant sought, firstly, 500,000 French francs (FRF) in respect of non-pecuniary damage and FRF 500,000 in compensation for the "harassment" that he had suffered as a consequence of the disciplinary penalty that had been imposed on him. 42. The Delegate of the Commission left the matter to the Court's discretion. However, he pointed out that the applicant's claim was based on the assumption that there had been a double breach of Article 6 para. 1 (art. 6-1), so that it would be appropriate not to award the whole of the amount sought if the Court agreed with the Commission's opinion. 43. Like the Government, the Court considers that the finding of a breach of Article 6 para. 1 (art. 6-1) constitutes in itself sufficient just satisfaction. B. Costs and expenses 44. Dr Diennet also sought FRF 47,000 in respect of the costs and expenses incurred before the French disciplinary and judicial bodies and FRF 30,000, plus FRF 3,720 in value added tax (VAT), in respect of those relating to the proceedings before the Convention institutions. 45. The Government left the matter to the Court's discretion. The Delegate of the Commission did not express a view. 46. Taking into account the fact that it has accepted only one of the complaints and making its assessment on an equitable basis, the Court awards the applicant FRF 20,000 including VAT.
The Court found a violation of Article 6 § 1 (right to a fair trial) of the Convention, because the hearings had not been held in public, and no violation of Article 6 § 1 in respect of the complaint that the disciplinary bodies had not been impartial.