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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> KÖNIG v. GERMANY - 6232/73 [1978] ECHR 3 (28 June 1978)
URL: http://www.bailii.org/eu/cases/ECHR/1978/3.html
Cite as: [1978] ECHR 3, (1980) 2 EHRR 170
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In the König case,
The European Court of Human Rights, taking its decision in plenary
session in application of Rule 48 of the Rules of Court and composed
of the following judges :
Mr. G. BALLADORE PALLIERI, President,
Mr. G. WIARDA,
Mr. H. MOSLER
Mr. M. ZEKIA,
Mr. P. O'DONOGHUE,
Mrs. H. PEDERSEN
Mr. THÓR VILHJÁLMSSON,
Mr. R. RYSSDAL,
Mr. W. GANSHOF VAN DER MEERSCH,
Mrs. D. BINDSCHEDLER-ROBERT,
Mr. D. EVRIGENIS,
Mr. P.-H. TEITGEN,
Mr. L. LIESCH,
Mr. F. GÖLCÜKLÜ,
Mr. F. MATSCHER,
Mr. J. PINHEIRO FARINHA,
and also Mr. M.-A. EISSEN, Registrar, and Mr. H. PETZOLD, Deputy
Registrar,
Having deliberated in private on 18 and 19 November 1977 and from
29 to 31 May 1978,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
l. The König case was referred to the Court by the Government of the
Federal Republic of Germany (hereinafter called "the Government") and
by the European Commission of Human Rights (hereinafter called "the
Commission"). The case originated in an application against the
Federal Republic of Germany lodged with the Commission on 3 July 1973
under Article 25 (art. 25) of the Convention for the protection of
Human Rights and Fundamental Freedoms (hereinafter called "the
Convention") by a German citizen, Dr. Eberhard König.
2. Both the Government's application, which referred to Article 48
(art. 48) of the Convention, and the Commission's request, which
relied on Articles 44 and 48, paragraph (a) (art. 44, art. 48-a), and
to which was attached the report provided for in Article 31
(art. 31), were lodged with the registry of the Court within the
period of three months laid down in Articles 32 para. 1 and 47 (art. 32-1,
art. 47) - the former on 28 February 1977, the latter on
14 March 1977. The purpose of the application and the request is to
obtain a decision from the Court as to whether or not the facts of the
case disclose a breach by the respondent State of its obligations
under Article 6 para. 1 (art. 6-1) of the Convention.
3. On 23 March, the President of the Court drew by lot, in the
presence of the Deputy Registrar, the names of five of the seven
judges called upon to sit as members of the Chamber; Mr. H. Mosler,
the elected judge of German nationality, and Mr. G. Balladore
Pallieri, the President of the Court, were ex officio members under
Article 43 (art. 43) of the Convention and Rule 21 para. 3 (b) of the
Rules of Court respectively. The five judges thus designated were
Mr. Zekia, Mrs. H. Pedersen, Mrs. D. Bindschedler-Robert,
Mr. D. Evrigenis and Mr. G. Lagergren (Article 43 in fine of the
Convention and Rule 21 para. 4) (art. 43).
Mr. Balladore Pallieri assumed the office of President of the Chamber
in accordance with Rule 21 para. 5.
4. The President of the Chamber ascertained, through the Registrar,
the views of the Agent of the Government and the delegates of the
Commission regarding the procedure to be followed. By an Order of
24 March the President decided that the Government should file a
memorial within a time-limit expiring on 15 June 1977 and that the
delegates of the Commission should be entitled to file a memorial in
reply within two months of receipt of the Government's memorial.
5. At a meeting held in private on 23 April in Strasbourg, the Chamber
decided under Rule 48 to relinquish jurisdiction forthwith in favour
of the plenary Court, on the ground "that the case raise[d] serious
questions affecting the interpretation of the Convention ...".
6. By an Order of 6 July, the President of the Court extended until
15 July the time allowed to the Government for the filing of their
memorial. The said memorial was received at the registry on 18 July.
7. On 2 August and 5 September, the Government submitted certain other
documents; the Government had given notice of the production of the
majority of these documents in their memorial of 18 July.
8. On 20 September, the Secretary to the Commission advised the
Registrar that the delegates had elected not to file a memorial in
reply to the Government's memorial.
9. After consulting, through the Registrar, the Agent of the
Government and the delegates of the Commission, the President directed
by an Order of the same date that the oral hearings should open on
16 November.
10. At a meeting held in private on 29 September in Luxembourg, the
Court decided that, if the Government so requested, their agents and
counsel would be authorised to address the Court in German at the oral
hearings, the Government undertaking inter alia responsibility for the
interpretation into French or English of their pleadings and
statements (Rule 27 para. 2).
The Government in fact presented such a request on 4 October.
11. On 9 November, the Government communicated certain information to
the Court and filed another document.
12. Immediately prior to the opening of the hearings, on 16 November,
the Court held a preparatory meeting.
13. The oral hearings took place in public at the Human Rights
Building, Strasbourg, on 16 and 17 November.
There appeared before the Court:
- for the Government:
Mrs. I. MAIER, Ministerialdirigentin at the Federal Ministry
of Justice, Agent,
Mr. J. MEYER-LADEWIG, Ministerialrat at the Federal Ministry
of Justice,
Mr. H. STÖCKER, Regierungsdirektor at the Federal Ministry of
Justice, Advisers;
- for the Commission:
Mr. J.E.S. FAWCETT, Principal Delegate,
Mr. G. SPERDUTI,
Mr. A. FROWEIN, Delegates,
Mr. R. BURGER, who had represented the applicant before the
Commission, assisting the delegates under Rule 29 para. 1, second
sentence (on 17 November only).
The Court heard addresses by Mrs. Maier for the Government and by
Mr. Fawcett, Mr. Sperduti, Mr. Frowein and Mr. Burger for the
Commission, as well as their replies to questions put by the Court.
14. Several documents that the Court had requested from those
appearing at the hearings were supplied on 17 November 1977 by the
Commission and on 16 January 1978 by the Government.
On 6 March and 8 May, the Government communicated certain
supplementary information and some further documents to the Court.
AS TO THE FACTS
15. The applicant, a German national born in 1918, had taken up
practice as an ear, nose and throat specialist in 1949. In 1960, he
opened at Bad Homburg (Hessen) in the Federal Republic of Germany a
clinic of which he was the owner; he was the only medical practitioner
working at the clinic which he ran and managed himself and where he
performed, in particular, plastic surgery.
16. On 16 October 1962, proceedings against Dr. König for
unproffesional conduct were instituted by the Regional Medical Society
(Landesärztekammer) before the Tribunal for the Medical Profession
(Berufsgericht für Heilberufe) attached to the Frankfurt
Administrative Court (Verwaltungsgericht) and he was declared unfit to
practise on 9 July 1964. The Regional Tribunal for the Medical
Profession (Landesberufsgericht für Heilberufe) attached to the Hessen
Administrative Court of Appeal (Verwaltungsgerichtshof) rejected
Dr. König's appeal on 14 October 1970.
The accusations against the applicant upheld by the Regional Tribunal
including the following: having offered a beauty specialist 20 % of
his fees and one of his patients DM 100 for each client they
introduced to him; having persuaded a patient to have treatment not
covered by social security by assurances that he would in that case be
able to use more effective methods; having refused to make out for one
of his clients an account corresponding to the fee actually paid;
having, as an ear, nose and throat specialist, performed an operation
not falling within the field in which he specialised; having had a
beauty specialist assist him during operations; having
widely-publicised his practice in the daily and weekly press; having
used on his name-plates, notepaper and prescription forms wording
contrary to the rules of the medical profession.
17. In 1967, the applicant had his authorisation to run his clinic
withdrawn and then, in 1971, his authorisation to practise. Criminal
proceedings were taken against him in 1972 for, inter alia, the
illegal practice of medicine.
Actions brought by Dr. König to challenge both of these withdrawals
have been in progress before the competent administrative courts since
November 1967 and October 1971, respectively.
18. The applicant complains of the length of the proceedings taken by
him against the withdrawals of the authorisations; he makes no
complaint about either the disciplinary proceedings before the
professional tribunals or the criminal proceedings.
1. The medical profession in the Federal Republic of Germany
19. In the Federal Republic of Germany, the medical profession is
governed partly by Federal law and partly by the law of the Länder.
The principal rules relevant for the present case are to be found, in
particular, in the Federal Medical Practitioners' Act
(Bundesärzteordnung - hereinafter referred to as "the Federal Act") in
the version of 4 February 1970 as last amended on 2 March 1974 and
26 March 1975, the Regulations of 28 October 1970 on the grant of the
authorisation to practise medicine (Approbationsordnung für Ärzte -
hereinafter referred to as "the Regulations") and the Hessen Act on
the Professional Bodies and Tribunals for Medical Practitioners,
Dentists, Veterinary Surgeons and Pharmacists (Gesetz über die
Berufsvertretungen und über die Berufsgerichtbarkeit der Ärzte,
Zahnärzte, Tierärzte and Apotheker - hereinafter referred to as "the
Hessen Act") in the version of 18 April 1966.
20. According to paragraph 1 of Article 1 of the Federal Act, the
medical practitioner shall have the care of the health of each
individual and of the community as a whole. Under paragraph 2, he
exercises a liberal profession and not a trade or business.
In order to be able to practise on a permanent basis, an authorisation
issued by the appropriate services of the Länder is required.
(Articles 2 para. 1 and 12 of the Federal Act and Article 35 of the
Regulations). This authorisation is granted on request if the person
concerned:
"1. is German ... or is a stateless alien ...,
2. has not been guilty of behaviour showing that he is unfit or
unreliable to exercise the profession ...,
3. is not incapable of, or unsuited for, the exercise of the ...
profession on account of an infirmity, of some weakness in his mental
or physical faculties, or of an addiction (Sucht),
4. after studying medicine for a minimum of six years, including a
minimum of eight months' and maximum of twelve months' practical
training in a hospital, has passed the medical examination in a place
where this Act is applicable.
..." (Article 3 para. 1 of the Federal Act).
If the application is granted, the person concerned receives a
document (Approbationsurkunde) certifying that the statutory
conditions are satisfied and adding:
"With effect from today's date, he (she) is granted authorisation to
exercise the medical profession .... Such grant authorises the doctor
to practise medicine" (Article 36 of the Regulations and Appendix 21
thereto).
If, on the other hand, the authorisation has to be refused for
nonfulfilment of one of the conditions, the applicant or his
representative must first be given a hearing (Article 3 para. 4 of the
Federal Act.)
An authorisation that has been issued must be withdrawn if one of
those conditions either was not satisfied at the time of the grant or
ceases to be met afterwards (Article 5 of the Federal Act).
21. Anyone wishing to run a clinic must have an authorisation pursuant
to the Trade and Business Act (Gewerbeordnung) and is entitled thereto
if he fulfils the conditions stipulated by Article 30 para. 1 of the Act
(see paragraph 27 below).
Since the management of a clinic is classified as a trade or business,
the person running it does not have to be a doctor himself. However,
he is required to take all necessary staffing and organisational
measures to ensure the treatment of patients in his institution.
He must, therefore, employ one or more doctors responsible for the
care of his clients.
The authorisation is withdrawn if it transpires either that the
documents supporting the application were incorrect or that the
requisite conditions were never, or have ceased to be, satisfied
(Article 53 of the same Act; paragraph 27 below).
22. It is not disputed that, according to German law, the right to be
authorised to practise medicine and the right to be authorised to run
a private clinic are rights conferred on the individual by public law
and protected by Article 12 of the Basic Law which guarantees freedom
to exercise a profession. Again, exercise of the medical profession,
unlike the running of a private clinic, is not considered in the
Federal Republic to be a trade or business (see paragraph 20 above);
although it also has the purpose of providing an income, its primary
aim is disinterested, namely, rendering assistance to mankind.
Medical treatment is a matter for a private-law contract between
doctor and patient. Such a contract serves to guarantee the free
choice of a medical adviser, maintain a relationship of trust between
him and his patient and uphold professional secrecy. However, the
contract does not establish a well-defined set of rights and
obligations since it imposes on the doctor a duty to provide basically
unlimited services to anyone seeking treatment. Moreover, the rules on
the medical profession forbid its members to advertise and even
regulate in detail the size and content of their name-plates.
Again, medical practitioners cannot fix their fees at will but must
comply with the Regulations even when not practising as national
health doctors. Minimum and maximum fees for medical services are
specified by Federal Government decrees, taking into account the
legitimate interests of practitioners and of the persons or
organisations having to pay them (Article 11 of the Federal Act).
Those affiliated to the social security health insurance funds - about
80 % of the population - are entitled to medical treatment according
to the terms of the legislation and agreements in force. The majority
of medical practitioners are approved national health doctors and
obliged to treat members of the insurance funds. The Federal
Constitutional Court (Bundesverfassungsgericht) has held that such
practitioners are not administering a public service but fulfilling a
public-law duty and, by their enrolment, are integrated within a
system of public law. (Collected Decisions of the Constitutional
Court, Vol. 11, pp 30 et seq.).
23. Medical practitioners carry out their duties under the control,
inter alia, of their societies and of the professional tribunals,
these institutions being governed by Länder Law.
24. Articles 1 and 2 para. 1 of the Hessen Act provide that regional
medical societies are public-law associations to which all doctors
practising in the Land belong. Practitioners who fail to register with
the competent society or to fulfil their other obligations under its
statutes may be fined (Article 7 of the Hessen Act.)
Article 4 para. 1 of the Hessen Act gives the following definition of each
society's functions:
"1. supervision of the discharge of (its) members' professional
duties ...,
2. promotion of the further training of society members,
3. promotion of harmonious relations among society members and
settlement of any disputes, arising in the exercise of the profession,
between members or between them and third persons, without prejudice
to the jurisdiction of other authorities,
4. assisting the official health service in the performance of its
functions, ..."
The authorities and the societies must assist each other in the
fulfilment of their respective functions (Article 5 of the Hessen
Act).
The societies are under State supervision which extends to observance
of the laws and statutes. The competent Minister may quash any
decision contravening these texts (Article 16 of the Hessen Act) and
may at any time request information from the societies concerning
their affairs (Article 17 para. 1).
25. If the council of the society suspects a practitioner of
unprofessional conduct, it refers the matter to the Tribunal for the
Medical Profession (Articles 18 and 29 para. 3 of the Hessen Act).
Under Article 20 para. 1, the decision at first instance is given by that
Tribunal which is attached to the Administrative Court for the
locality and has three members, namely the President, or his
representative, and two assessors belonging to the defendant's
professional group (Article 21 para. 1).
An appeal against the Tribunal's decision may be made to the Regional
Tribunal for the Medical Profession attached to the Hessen
Administrative Court of Appeal (Articles 41 and 20 para. 2); the appellate
tribunal is composed of five members, namely the President, or his
representative, two other judges of the Administrative Court of Appeal
and two assessors belonging to the defendant's professional group
(Article 21 para. 2).
The professional tribunals may impose the following penalties, the
second, third and fourth of which may be combined: warning, reprimand,
temporary suspension of the right to vote in society proceedings, fine
up to DM 10,000 and finding that the individual is unfit to exercise
the profession (Article 19 paras. 1 and 3).
The authorisation to practise is not automatically revoked as the
result of the last-mentioned finding. Although its ultimate purpose is
the individual's exclusion from the profession, it binds neither the
Regierungsprasident, who alone has power to withdraw the
authorisation, nor any courts which may be called upon to examine the
lawfulness of such a withdrawal.
26. Decisions by the Regierungspräsident withdrawing either an
authorisation to practise or an authorisation to run a private clinic
may be challenged before the administrative courts. However, before
the person concerned can bring the matter before the courts, he must
first have filed - unsuccessfully - an objection (Widerspruch) with
the Regierungspräsident.
2. The withdrawal of the authorisation to run the clinic - proceedings
before the 4th Chamber of the Frankfurt Administrative Court
27. On 12 April 1967, at the request of the Regional Medical Society,
the Regierungsprasident in Wiesbaden withdrew the applicant's
authorisation to run his clinic, claiming that he could not be relied
on to conduct the institution properly and lacked the diligence and
knowledge required for its technical and administrative management.
The Regierungspräsident adverted to an inspection of the clinic which
had revealed, in November 1965, numerous irregularities: out of
thirty-four medical records, eighteen were not maintained correctly;
the training of the staff was insufficient for the work entrusted to
them; the equipment in the treatment room left something to be
desired; the instruments, some of which were beginning to rust, were
in part badly kept; the X-ray machinery lacked safety devices.
Inspectors were said to have found in January 1967 that, amongst other
things, the operating theatre and its equipment had not been cleaned.
The Regierungspräsident relied also on evidence given by several
people to the effect that, between 1962 and October 1966, the clinic
had in fact been managed by a young employee who was aged eighteen in
1962 and was unqualified. She supervised the staff and took care of
the patients and had allegedly confirmed that dog-food was kept in the
refigerator at the clinic and that the applicant allowed men to be
present in the rooms outside visiting hours. According to her,
Dr. König also made advances to her and one of her colleagues on
several occasions.
The decision of the Regierungspräsident was based on the following
provisions of the Trade and Business Act:
Article 30 para. 1
"A person running a private clinic, maternity home or mental hospital
requires an authorisation from the higher administrative authority.
The authorisation may be refused only:
(a) if the facts show that the said person cannot be relied on
properly to conduct and manage the institution;
..."
Article 53 para. 2
"The licences ... mentioned in [Article] 30 ... may be withdrawn ...
only:
1. ...
2. if it subsequently appears that the person running the institution
does not possess the qualifications required for the grant of the
licence ... or that the premises or technical equipment of the
institution no longer satisfy the requirements for the grant of the
authorisation.
..."
28. On 13 July 1967, the applicant filed an objection which was
rejected by the Regierungspräsident on 6 October. Dr. König then
appealed, on 9 November, to the Frankfurt Administrative Court, the
case being assigned on the following day of its 4th Chamber which is
competent to hear disputes relating to the law on trade and business
activities.
These appeals had the effect of suspending enforcement of the decision
complained of.
29. As early as 10 November, the court asked the Regierungspräsident
for his observations; it received them on 8 February 1968, after
extending the time granted and sending a reminder.
The Regierungspräsident was requested on 27 March to supply further
information and he submitted a written pleading on 30 May. He
indicated therein that the applicant was to undergo a psychiatric
examination whose results would be forwarded to the court later.
The court asked the Regierungspräsident about this on 10 June, 25 July
and 9 August; he supplemented his earlier observations but told the
court on 10 January 1969 that the applicant had not agreed to be so
examined.
On 16 January, the court asked the Regierungspräsident to clarify a
point in his pleading; this clarification was received by the court on
2 April.
30. In the meantime and until January 1969, the court had tried to
obtain from, notably, the Regierungspräsident (10 June 1968) and the
competent local authorities (10 October), the addresses of several
persons who might be called as witnesses.
The court also endeavoured, as from 8 January 1969, to procure files
on the applicant, including those of the professional tribunals
(see paragraph 16 above).
On 26 August 1969, the court decided to hear sixteen witnesses at
sittings fixed for 25 and 26 November. For this purpose, it tried, for
example on 11 and 18 September, to obtain the addresses of witnesses
and requested the production of other files concerning Dr. König.
On 27 November, the court fixed 2 December as the date for the oral
hearing (mündliche Verhandlung) and for the continuation of the taking
of evidence from the witnesses, including a certain Mr. Xymenes who
had made serious accusations against Dr. König before the Regional
Medical Society.
The court sat on 2, 8 and 12 December. It imposed fines
(Ordnungsstrafen) of DM 100 and DM 500 on Mr. Xymenes for failing to
appear.
On 3 February 1970, the court decided not to hear the appeals
(Beschwerden) made by Mr. Xymenes against these penalties on
30 December 1969 and 2 January 1970 and to transmit the file to the
Hessen Administrative Court of Appeal. On 17 February, the latter
court invited those concerned to present their observations and it set
aside the two fines on 9 and 10 March.
31. On 17 April 1970, the file was returned to the Administrative
Court which, on 14 May, informed the parties of the state of the
proceedings. It asked them to indicate as soon as possible what
evidence they proposed to put forward, pointing out that several
persons had offered to make statements on the medical treatment given
to them by the applicant. The court also stated that, as far as it was
concerned, the hearings could be resumed at the end of June or the
beginning of July since the lay judges would be available then.
On 29 May, Dr. König indicated that he would abstain from nominating
further witnesses if the Regierungspräsident did likewise. However, on
8 June, the latter named a certain number of additional witnesses and,
on 6 July, he filed with the court a pleading dealing with the
evidence taken so far.
This pleading was sent by the court on 13 July to the applicant for
his comments; on 24 September, he requested in writing that
seventy-six witnesses be heard should the court decide to hear those
mentioned by the Regierungspräsident.
There followed a further exchange of pleadings.
32. On 25 February 1971, the Regierungspräsident informed the court
that Mr. Xymenes was detained in prison at Constance and could
accordingly be served with a summons to appear.
After advising the applicant, the court wrote on 14 April to the
competent authorities in Constance to enquire whether Mr. Xymenes was
being held in the prison and, if so, for how long. The prison replied
on 27 April that the witness had been released.
33. On 29 April 1971, the judge acting as rapporteur directed that the
file be sent back to the President of the Chamber to enable him to fix
the date of the hearing, but this instruction was not carried out,
probably due to a mistake on the part of the registry.
On 24 May, Mr. Schmidt-Leichner of Frankfurt announced that he was no
longer acting as Dr. König's lawyer.
34. The applicant, who on 26 August 1971 had asked the court to fix
the date for the hearing without delay, was told on 2 September that
the file would be submitted to the President of the Chamber
immediately he returned from holiday. An order of the court set
5 September as the date for such submission.
On 20 October, Messrs. Bossi, Breme and Ufer of Munich told the court
that they were now acting for Dr. König.
Following receipt of a letter from the Frankfurt Regional Employment
Tribunal (Landesarbeitsgericht), the file was returned to the judge
acting as rapporteur on 21 October.
35. On 29 November 1971 and 12 January 1972, the court attempted yet
again, but without success, to contact Mr. Xymenes to discover whether
he would be able to give evidence in January/February or in
February/March 1972.
On 21 February, the court fixed 28 March as the date for a hearing to
which it summoned Mr. Xymenes. He did not appear and on 29 March was
fined DM 500 by the court which also ordered him to attend a further
hearing due to be held on 31 May.
Relying on a medical certificate, Mr. Xymenes on 8 April lodged an
objection against this penalty but the court dismissed the objection
and sent the file to the Hessen Administrative Court of Appeal.
On 26 April, the latter court asked the witness's doctor to supply
further details about the said certificate: it received them on
2 May and set the fine aside on 18 May.
The file was returned on 29 May to the Administrative Court which on
the same day cancelled the hearing fixed for 31 May, on the ground
that the presence of Mr. Xymenes could not be secured.
Pursuant to an order of 7 June 1972, there was a further hearing
on 11 July. Once again, Mr. Xymenes did not appear.
On 13 July, the Court fined him DM 500. On 10 August, it directed that
the taking of evidence would continue on 19 September. On 22 August,
it issued a subpoena against Mr. Xymenes who gave evidence on
19 September.
36. At the conclusion of this last sitting, the court granted the
parties the faculty of submitting, by 15 October, their written
observations on the result of the examination of witnesses.
Dr. König took advantage of this on 13 October.
On 14 November, other lawyers informed the court that they had been
instructed by the applicant and requested it to await their written
pleading. This document, which arrived on 12 February 1973, commented
on the evidence already obtained, repeated the earlier applications
for evidence to be taken and made new applications therefor. On the
same day, Mr. Demme announced that he was Dr. König's new lawyer.
The court transmitted the pleading to the Regierungspräsident on
22 February.
In the meantime, on 30 January, the court had requested Dr. König to
produce his records on two of his former patients. Having received
only photocopies of the documents in question, the court renewed its
request on 22 February and tried to trace a further witness.
37. On 30 March 1973, the court supplemented its order of
26 August 1969 (see paragraph 30 above) and fixed 17 April as the date
for the continuation of the taking of evidence and for the oral
hearing. At the close of its sitting on 17 April, it indicated that it
would give a decision on 8 May.
However, after trying to obtain witnesses' addresses and taking
cognisance, on 18 April, of another written pleading from the
applicant, the court on 2 May adjourned sine die the date for delivery
of its decision; at the same time and also subsequently, it requested
Dr. König to supply further information, which was received on
14 May and 9 July. Between these dates, the court also had researches
made for the addresses of several witnesses.
The parties supplemented their pleadings on 26 and 30 July 1973.
38. On 16 August 1973, the court decided that there should be a second
additional enquiry and, in particular, the hearing of five new
witnesses. On the next day, it sent the file to the Bad Kissingen
District Court (Amtsgericht) for it to hear one of those witnesses; on
20 August, it directed that the three others should be heard on
21 September but, on 22 August, postponed this to 5 October
at Dr. König's request. When the file came back from Bad Kissingen,
the court on 19 September asked the Altena District Court to hear
another witness.
39. Previously, on 22 August, the applicant had filed with the Hessen
Minister of Justice a disciplinary complaint (Dienstaufsichtsbeschwerde)
in which he also declared that he challenged "the Frankfurt
Administrative Court". For this reason, on 3 October, the court
cancelled the hearing due to take place two days later.
On 4 October, the 3rd Chamber of the Administrative Court, which
appeared to have jurisdiction in the matter, asked Dr. König to
specify which of the judges he was challenging, pointing out that it
was not possible to challenge all the members of a Chamber.
The applicant replied on 19 October that his claim was limited to the
judge of the 4th Chamber acting as rapporteur and that he objected to
certain wording used by the latter in the letters rogatory sent on
19 September to the Altena District Court.
On the same day, Mr. Schilling, acting on behalf of Dr. König,
complained about the length of the proceedings to the Federal
Constitutional Court. The Administrative Court was invited on
31 October to present its observations and it did so on 9 November,
transmitting the file to the Constitutional Court on 15 November.
The latter, by a decision of 28 November, refused to hear the
complaint on the ground that it did not offer sufficient prospects of
success.
Following the return of the file on 10 December, the Administrative
Court on 8 January 1974 upheld the challenge against the judge acting
as rapporteur.
40. The file was then transmitted by the Administrative Court to the
Hessen Minister of Justice to enable him to give a decision on the
disciplinary complaint; he received the file on 14 January 1974 and
returned it on 8 March. On 22 March, the court sent the file to the
Hagen public prosecutor's department (Staatsanwaltschaft) as requested
by it and by the President of the Regional Court (Landgericht) of the
same town, who needed it in order to examine another disciplinary
complaint by Dr. König.
41. On 26 April 1974, the applicant asked the Administrative Court not
to hear a witness who it was contemplated should be summoned.
This request was repeated on 28 May but rejected on 6 June by the
court which decided to hold a hearing on 30 July.
Only some of the witnesses appeared on that day. One was heard at home
on 14 August and another gave evidence in writing.
On 14 August, the file was sent to the Hessen Minister of Justice for
the purposes of the proceedings instituted by Dr. König on 3 July 1973
before the Commission. On this occasion, the President of the
4th Chamber made known his observations on the outcome of the court's
enquiry; he was of the opinion that the partly contradictory
statements of the witnesses did not allow a firm conclusion to be
drawn on the applicant's activities as manager of the clinic;
accordingly, the question arose whether his conduct as a medical
practitioner also had to be taken into account; however, it was not
for the 4th Chamber to rule on the complaints against Dr. König in
this last-mentioned capacity since they were the object of proceedings
pending before the 2nd Chamber.
42. On 25 August, the applicant submitted observations on the
statements made by one witness and applied for seven further witnesses
to be heard. A copy of this pleading, which the court had requested
from him on 28 August, was sent on 5 September to the
Regierungspräsident who replied on 7 October.
The Hessen Minister of Justice returned the file to the Administrative
Court on 28 October.
43. The court had previously been advised that in July the applicant
had entrusted his case to another lawyer, Mr. Unruh. The latter
returned the brief on 26 November and his successor Mr. Heldmann, who
had given notice on 18 October 1974 that he was acting for Dr. König,
did likewise on 21 February 1975.
44. On 10 February 1975, the President of the 4th Chamber had a
meeting with the applicant who stated that he had let the clinic
premises for use as an old people's home and would re-open the clinic
- in association with a surgeon - only after being authorised to
practise again. Furthermore, he agreed that priority be given to the
proceedings, pending before the 2nd Chamber, concerning the exercise
by him of his profession.
45. The file was sent on 5 May to the Hessen Minister of Justice for
the purpose of the Commission proceedings. It was returned to the
court on 26 June and then communicated on 4 July to Dr. König's new
lawyer, Mr. Cartus of Karlsruhe, who on 16 April had indicated that he
had been instructed. The Court had allowed him two weeks to consult
the file and, on 11 July, extended this period to 8 August.
However, on 18 July, Dr. König informed the court that he had
withdrawn Mr. Cartus' instructions and requested that he be asked to
return the file which Dr. König wished to study himself. The court
communicated on 21 July with the lawyer who returned the file on
29 July.
On 1, 4 and 11 August, the applicant and his new lawyer, Mr. Mattern,
who acted for him from 22 July to 14 August, requested the court to
send them certain documents, including verbatim records of evidence,
two of which were despatched to them on 18 August.
From 11 to 23 September, the file was with Mr. Unruh who, since
11 September, had once again been entrusted with Dr. König's case.
46. On 6 November 1975, there was added to the file a second challenge
lodged by the applicant with the Hessen Minister of Justice on
10 October (see also paragraph 67 below).
On 2 December, the President of the Chamber wrote to Dr. König to
enquire whether his intention was to challenge the members of the
Chamber on the ground of bias and, if so, which members.
As regards the duration of the proceedings, the President remarked:
"I wish to point out that we have repeatedly talked about the
expediency of continuing the proceedings concerning the authorisation
to run a clinic and pending before the 4th Chamber. On those occasions
you agreed with me that it was necessary first of all to await the
conclusion of the proceedings relative to the authorisation to
practise medicine because they had to be regarded as having priority.
You also mentioned that you would not re-open your clinic before that
date although in law you would be entitled to do so. Should you have
changed your mind, please let me know."
Dr. König's lawyer replied on 8 December that the claim related
primarily to the President of the 2nd Chamber and the manner in which
the last hearing before that Chamber had been conducted. He requested
the court not to decide, for the time being, whether his client was
challenging the 4th Chamber.
On the subject of the duration of the proceedings, the lawyer
declared:
"The question of the conclusion of the proceedings concerning the
authorisation to practise medicine has at present priority because in
those proceedings immediate enforcement of the administrative decision
has been ordered. It is known that there is no order for immediate
enforcement of the decision to withdraw the authorisation to run the
clinic; consequently, as regards the last two sentences in your letter
of 2 December 1975, there is at present no need for the 4th Chamber of
the Frankfurt-on-Main Administrative Court to give an early decision."
The applicant withdrew Mr. Unruh's instructions on 25 April 1976.
47. The proceedings before the 4th Chamber accordingly remained
suspended and were resumed only after the 2nd Chamber had delivered
judgment on 9 June 1976.
Hearings, which originally had been arranged for 17 May 1977 and were
then postponed at the applicant's request, took place in June.
On 22 June 1977, the 4th Chamber dismissed the applicant's appeal
against the withdrawal of the authorisation to run his clinic.
Its judgment was based on the evidence taken during the hearing of
seventeen witnesses between November 1969 and August 1974.
Dr. König appealed to the Hessen Administrative Court of Appeal where
the case is still pending before the Chamber (Senat) which, on
2 May 1978, ruled on his appeal against the judgment of the
2nd Chamber of the Administrative Court (see paragraph 69 below).
Another lawyer, Mr. Hofferbert of Frankfurt, is representing the
applicant before the Administrative Court of Appeal.
48. According to statistics supplied by the Government, purely by way
of indication, concerning the action before the 4th Chamber,
1,149 days of the proceedings are attributable to measures taken by
the court, 1,725 to measures taken by the applicant and his lawyers
and 555 to measures taken by third parties, including the defendant
administrative authorities, the professional bodies and the witnesses.
3. The withdrawal of the authorisation to practise medicine -
proceedings before the 2nd Chamber of the Frankfurt Administrative
Court
49. On 12 May 1971, the Regierungspräsident in Darmstadt withdrew the
applicant's authorisation to practise medicine and directed that this
decision should have immediate effect (Article 80 para. 2,
sub-paragraph no. 4, of the Code of Administrative
Procedure - Verwaltungsgerichtsordnung). On the basis of the findings
made by the professional tribunals in 1964 and 1970 (see paragraph 16
above), the Regierungspräsident considered that Dr. König had behaved
in a manner which disclosed his professional unfitness and his failure
to meet medical ethical standards. The Regierungspräsident was acting
in pursuance of the following provisions of the Federal Act:
Article 5 para. 2
"The authorisation to practise medicine shall be withdrawn if one of
the requirements of Article 3 para. 1, first sentence, sub-paragraph
no. 2, ceases to be satisfied."
Article 3 para. 1
"The authorisation to practise medicine shall be granted on request
provided the applicant:
1. ...
2. has not been guilty of behaviour showing that he is unfit or
unreliable to exercise the profession ..."
50. On 1 June 1971, at the request of the applicant and in order to
allow him to refer his patients to other practitioners, the Frankfurt
Administrative Court restored the suspensive effect of the objection
against the decision of the Regierungspräsident, but only until
30 June. The appeal lodged by Dr. König against this ruling was dismissed
by the Hessen Administrative Court of Appeal on 6 July.
51. After the Regierungspräsident had rejected on 17 September 1971
the objection filed by the applicant on 18 May against the withdrawal
decision, the latter appealed to the Darmstadt Administrative Court on
20 October 1971. For reasons of jurisdiction, this court on 25 October
referred the case to the Frankfurt Administrative Court where it was
assigned to the 2nd Chamber which is responsible, inter alia, for
questions relating to the law on the medical profession.
52. On 2 November 1971, the Frankfurt Administrative Court notified
the Regierungspräsident of the appeal, requesting his comments and
production of the files kept by his services.
The written pleading of the Regierungspräsident was filed on
24 January 1972 and communicated to the applicant's lawyer two days
later. After being asked by the court on 24 April whether he intended
to submit a reply, the lawyer made an application for the time-limit
to be extended until the end of May.
The reply in question was filed on 26 June and sent to the
Regierungspräsident for comment. Following the receipt on 11 July of a
voluminous supplementary pleading from the applicant's lawyer, the
Regierungspräsident on 27 July sought an extension until mid-October
of the time-limit expiring on 30 July; on 11 August, the court gave
leave for the expiry date to be deferred, but only until 15 September.
53. On 5 September 1972, the court ordered that the Regional Medical
Society be joined (Beiladung) to the proceedings. On
14 September 1972, after requesting the parties and the Regional
Medical Society to furnish certain explanations and after calling for
the production of certain criminal files, the court proposed a
friendly settlement of the case. The suggestion was that Dr. König
would cease to practise as a self-employed physician and to run his
clinic, whilst the Regierungspräsident would restore his authorisation
to exercise his profession subject to certain conditions. The
applicant rejected this proposal on 12 October. The court advised the
Regierungspräsident of this four days later, reminding him at the same
time about the submission of his comments.
54. Those comments were received by the court on 16 January 1973; a
written pleading from the Regional Medical Society was filed on
16 February.
Dr. König had changed lawyers on 12 February (see paragraph 36 above).
His new adviser, Mr. Demme, inspected the court's file, returning it
on 14 March; on 2 May, he also returned the files of the
administrative authorities which the court had at his request sent to
him on 20 March. On 7 May, he submitted a written pleading which the
the court communicated for comment to the Regierungspräsident and the
Regional Medical Society.
55. On 5 May and 6 August 1973, the court asked the Frankfurt District
Court and public prosecutor's department for information as to the
state of criminal proceedings instituted against the applicant on
27 July 1972 (see paragraph 71 below).
On 9 August, the public prosecutor's department advised the court
that, following a hearing held in the meantime, those proceedings had
been stayed because further witnesses and experts were to be summoned.
56. On 14 September 1973, the President of the Administrative Court of
Appeal sent a copy of the disciplinary complaint of 22 August to the
2nd Chamber which Dr. König had mentioned when challenging "the
Frankfurt Administrative Court" (see paragraph 39 above).
The file was passed to the 3rd Chamber for it to rule on the
challenge. Together with the file were communicated declarations made
by the members of the 2nd Chamber; in particular, the judge acting as
rapporteur indicated that the 2nd Chamber wished to await the result
of the criminal proceedings in view of their importance for the
question at issue before it.
On 8 October, the 3rd Chamber rejected the challenge on the ground
that the applicant had failed to show prima facie the existence of
justificatory reasons. As soon as this decision had become final, the
file was returned, on 26 October, to the 2nd Chamber.
57. The court had decided on 25 September 1973 to suspend its
proceedings to await the outcome of the criminal proceedings
instituted against the applicant (see paragraph 71 below) as it
considered that the latter proceedings were of importance for the
action pending before it (Article 94 of the Code of Administrative
Procedure).
58. On 19 October 1973, Dr. König had complained to the Constitutional
Court of the length of the proceedings pending before the 2nd and
4th Chambers (see paragraph 39 above). Having been requested by the
Constitutional Court on 31 October to submit his observations, the
President of the 2nd Chamber replied on 6 November that the Chamber
proposed to defer its judgment until the close of the criminal
proceedings.
The Constitutional Court decided on 28 November not to allow the
appeal. It observed, inter alia, that, in refusing to fix a date for
the hearing as long as it did not know the result of the criminal
proceedings, the 2nd Chamber had - up to that time - properly
exercised its discretion in the matter. The nine volumes of the case
file had been forwarded to the Constitutional Court on 19 November;
they were sent back to the Administrative Court on 10 December.
59. On 16 February 1974, the Frankfurt District Court informed
the 2nd Chamber that, in the criminal proceedings, detailed expert
opinions still had to be obtained and that the trial would not take
place before the second half of the year.
On 26 March, the 2nd Chamber asked the District Court to confirm that
the applicant remained charged, inter alia, with having continued to
practise notwithstanding the withdrawal of the necessary
authorisation.
60. On a further application by Dr. König, the Constitutional Court on
11 April 1974 asked the 2nd Chamber for a supplementary report on the
state of the proceedings and, in view of their duration, for an
indication whether he could not be granted some concessions as regards
the immediate enforcement of the withdrawal.
The President of the 2nd Chamber replied on the same day. She
emphasised that any modification of the decision not to stay such
immediate enforcement would endanger the health of the applicant's
patients if the accusations against him proved to be founded.
The Chamber did not consider that it could take this risk.
Furthermore, judicial experience in no way bore out the opinion that
the accusation that Dr. König had continued to perform operations
could be verified more swiftly by the Chamber than by the District
Court, but with the same degree of reliability.
On 30 May, the Constitutional Court decided not to hear the complaint
on the ground that it did not offer sufficient prospects of success.
The Administrative Court received a copy of this decision on 6 June.
61. Previously, on 25 April 1974, the latter court had informed the
applicant that it maintained its decision to await the outcome of the
criminal proceedings.
On 8 May, the District Court had confirmed to the 2nd Chamber
(see paragraph 59 above) that Dr. König remained charged with having
continued to practise after the withdrawal of his authorisation; it
had added that a decision within the next six months was hardly likely
since the applicant had challenged one of the judges and extensive
appellate proceedings were in progress.
62. On 11 July 1974, Dr. König, pleading the length of the
proceedings, requested the Administrative Court to restore the
suspensive effect of his appeal against the withdrawal decision.
However, the file was sent to the Hessen Minister of Justice who had
asked for it on 29 July for the purposes of the Commission
proceedings; it was returned to the court on 24 October after the
Government's observations on admissibility had been filed in
Strasbourg.
Between 11 July and 24 October, the applicant had changed his advisers
twice (see paragraph 43 above); until 16 December the file was
retained for consultation by Mr. Heldmann, the second of the lawyers
so appointed.
63. On 3 January 1975, the 2nd Chamber rejected the request of
11 July 1974. Dr. König, who had withdrawn instructions from his
lawyer (see paragraph 43 above), at once appealed in person to the
Hessen Administrative Court of Appeal but it dismissed the application
on 4 November. The court, relying on the statements made by witnesses
during the proceedings before the 2nd Chamber, took the view that, if
the applicant were authorised to practise, he might endanger any
clients who consulted him. Dr. König had previously attacked the
decision of the 2nd Chamber before the Federal Constitutional Court
which, on account of non-exhaustion of remedies, had declined to hear
his application.
64. After the return of the file to the Administrative Court on
26 June 1975, the President of the 2nd Chamber and the judge acting as
rapporteur agreed on 30 June, in order to expedite matters, not to
wait any longer for the result of the criminal proceedings or of the
action before the Administrative Court of Appeal. They contemplated
holding hearings on 3 September.
The judge acting as rapporteur made, also on 30 June, enquiries of the
District Court about the state of those criminal proceedings.
On 10 July 1975, the Constitutional Court decided not to hear a
further complaint filed on Dr. König's behalf by Mr. von Stackelberg
and objecting, inter alia, to the dilatory nature of the proceedings.
It considered, amongst other things, that the special features of the
case, from both a factual and a legal point of view, and the
applicant's unfitness to practise, which had been conclusively found
by the Regional Tribunal for the Medical Profession, justified the
2nd Chamber's awaiting the decision in the criminal proceedings and
maintaining the immediate effect of the withdrawal of the
authorisation. The court added that, furthermore, nothing prevented
Dr. König from seeking, principally on the ground of the length of the
proceedings, restoration of the suspensive effect of the appeal
against the said withdrawal.
65. On 14 July 1975, the 2nd Chamber decided that on 2 and 3 September
there would be a sitting devoted to the hearing of evidence and of
argument. The parties were informed of this decision two days later.
On 28 and 31 July, the Chamber had researches made for the addresses
of some witnesses. On 14 August, it was advised that Mr Mattern, the
lawyer instructed by Dr. König on 22 July (see paragraph 45 above),
was no longer acting for him. Six days later, the applicant filed a
pleading, the Regierungspräsident having submitted one on 14 August.
66. The hearing did take place on 2 and 3 September 1975. After
hearing six witnesses, the court directed that there should be a
further sitting on 12 November, but it cancelled this on 14 October as
the file was with the Hessen Administrative Court of Appeal which had
to rule on the appeal of 3 January (see paragraph 63 above).
67. Dr. König, in a letter of 10 October received on 13 October by the
Hessen Ministry of Justice, had sought the transfer to another court
of the actions pending before the 2nd and 4th Chambers whose judges,
he alleged, could "no longer be described as impartial".
The letter was sent on 16 October by the Minister to the Frankfurt
Administrative Court and was put before the 2nd and 4th Chambers on
6 November (see also paragraph 46 above).
On 13 November, the President of the 2nd Chamber wrote to the
applicant to enquire whether a formal challenge was being made; the
lawyer, Mr. Unruh, who from 11 September 1975 to 25 April 1976 once
again acted for Dr. König (see paragraphs 45 and 46 above), replied on
6 December that his client was challenging the President herself.
He also asked to be allowed to consult the file; this was held at his
disposal at the registry until 13 January 1976 but he did not go to
collect it there.
On the last-mentioned date, the file was sent to the Hessen Ministry
of Justice for the purposes of the proceedings pending before the
Commission. It came back on 17 February to the court which, on
5 March, rejected the challenge.
68. On 15 April 1976, the 2nd Chamber decided that it would hear
further witnesses on 12 May.
On 28 April, it refused an adjournment requested on 24 April by
Dr. König's lawyer and emphasised that his client had insisted on the
urgency of a decision.
Having been told by the applicant on the following day that there would be
hearings in the criminal case on 12 May, the Chamber agreed on 6 May to
postpone its own sitting until 9 June.
On 1 June, the applicant sought a further adjournment, maintaining
that on 9 June he had to prepare for the hearings which were to resume
in the criminal court on the next day. The 2nd Chamber, having found
that he had had sufficient time for preparation, refused the request
on 9 June.
69. On 9 June 1976, after hearing witnesses, the court dismissed
Dr. König's appeal against the withdrawal of his authorisation to
practise medicine. Its judgment was based on the statements of eight
persons heard by it in 1975, most of whom had already given evidence
about the same facts before the 4th Chamber, and was communicated on
3 August to the applicant, whose laywer lodged an appeal on 11 August.
On 13 August, the court sent the file to the Hessen Administrative
Court of Appeal which, by judgment of 2 May 1978, dismissed the
appeal; this judgment has not yet become final.
70. According to statistics supplied by the Government, purely by way
of indication, concerning the action before the 2nd Chamber, 569 days
of the proceedings are attributable to measures taken by the court,
841 to measures taken by the applicant and his lawyers and 311 to
measures taken by third parties, including the defendant
administrative authorities, the professional bodies and the witnesses.
4. The criminal proceedings against the applicant
71. The criminal proceedings against the applicant are not in issue
but should be mentioned because of their effect on the action before
the 2nd Chamber of the Frankfurt Administrative Court which had
postponed its decision pending their outcome (see paragraphs 55-61 and
64 above).
The criminal proceedings originated in a complaint against Dr. König
relative to the illegal practice of medicine, causing bodily harm and
committing fraud, which the Regierungspräsident in Darmstadt had
lodged on 27 July 1972 with the Frankfurt public prosecutor's
department.
72. The applicant, who on 10 August 1972 had refused to be questioned
by the police, was charged on 11 September before the Frankfurt
District Court, sitting as a lay magistrates' court (Schöffengericht).
The indictment (Anklageschrift) alleged that, between September 1971
and the beginning of June 1972, he had continued to practise despite
the withdrawal of the requisite authorisation (continuing breach of
the Federal Medical Practitioners' Act), that he had thereby
perpetrated frauds (Article 263 of the Penal Code) and that he had
caused, in one case, serious bodily harm (Articles 223 and 223 (a) of
the Penal Code).
73. At the close of its sitting on 17 April 1973, the court ordered
numerous enquiries. A psychiatrist and a psychologist gave their
opinion on one of the alleged victims; he was the only alleged victim
called by the public prosecutor's department as a witness and had
intervened (Nebenkläger) in the proceedings on 13 November 1972 in
order to claim damages.
74. On 14 February 1974, the court decided that, if by 20 April
Dr. König had not himself submitted an expert opinion on the state of
his mental health, he should be examined by a psychiatrist.
On 1 March, the applicant lodged an objection against this decision
and that of 17 April 1973. On 14 March, he stated that he was
challenging the President of the lay magistrates' court; after a judge
had refused this plea on 6 May, both he and the President were
challenged by Dr. König on 15 May.
On 26 May, the District Court dismissed the objection and the
challenge and directed that the private expert opinion be submitted
not later than 1 August.
75. Two days later, Dr. König repeated his objection of 1 March and at
the same time lodged a disciplinary complaint against the President of
the lay magistrates' court. The Frankfurt Regional Court dismissed the
objection on 10 June 1974; the documents do not disclose the result of
the disciplinary complaint.
76. On 29 June, Dr. König challenged the expert nominated by the court
and proposed two others. He supplemented this application on 3 July
and appealed to the Federal Constitutional Court against the decisions
of 14 February and 26 May. On the next day, he requested the District
Court to suspend enforcement of the first decision until the
Constitutional Court had given its ruling. On 16 July, the District
Court declined to do so and, nine days later, it received a copy of
the Constitutional Court's decision rejecting the appeal of 3 July.
On 7 August, the court dismissed an application by Dr. König for a
further psychiatric examination of the party claiming damages.
77. On 15 August 1974, the District Court, considering that the
potential penalty exceeded that which it had competence to impose,
relinquished jurisdiction in favour of the Frankfurt Regional Court.
Under the then Article 24 para. 2 of the Constitution of the Courts Act
(Gerichtsverfassungsgesetz), a District Court could "impose neither a
penalty of imprisonment for more than three years nor detention for
reasons of security (Sicherungsverwahrung)".
78. On 10 October, the 18th Criminal Chamber (Strafkammer) of the
Regional Court, to which the case had been assigned, directed that the
trial (Hauptverhandlung) should take place on 4, 6 and 11 December.
On 25 October, it joined to the pending proceedings a further charge,
preferred by the public prosecutor's department on 7 August, alleging
that Dr. König had practised on 17 July 1972 in Bad Homburg despite
the withdrawal of the requisite authorisation and had caused his
patient bodily harm. As the applicant had not appeared, the court on
4 December issued a warrant for his arrest and adjourned the trial
sine die.
79. On 1 January 1975, the case was assigned to the 1st Chamber which,
however, was composed of the same judges as the 18th Chamber in 1974.
On 2 January, the 1st Chamber ordered that several witnesses be
examined on letters rogatory. Witnesses were heard in February and
March by the Koblenz, Ahrensburg and Düsseldorf District Courts.
On 24 March, the Chamber revoked the warrant issued on 4 December.
On 15 May, the Vice-President of the Chamber directed that the trial
should take place in mid-January 1976; at the same time he ordered
that a witness be interrogated again by the Ahrensburg District Court.
80. On 20 June 1975, the Presidential Council of the Regional Court
relieved the 1st Chamber of all matters it had to decide as a court of
first instance, with effect from 23 June. The proceedings pending
against Dr. König were transferred to the 13th Chamber.
The President of the latter Chamber received the case file on 10 July.
On 8 August, he postponed the trial until 3, 5, 10 and 12 February
1976; these dates he cancelled on 13 October 1975 for the reason that
the Chamber was obliged to deal with another substantial case.
81. On 1 January 1976, all first-instance cases beginning with the
letter "K", including the applicant's, were passed to the 25th Chamber
of the Regional Court in accordance with the 1976 arrangements for the
allocation of cases.
The trial opened before the 25th Chamber on 5 May. On 24 September,
after twenty-three days of sittings, the Chamber ordered the
discontinuance of the proceedings (Einstellung des Verfahrens) under
Article 153 (a) of the Code of Criminal Procedure.
The Chamber's decision reveals that Dr. König's fault was regarded as
very slight. As he had undertaken to pay DM 8,000 to the party
claiming damages and DM 20,000 to the Treasury, the Chamber considered
that there was no longer any public interest in the proceedings being
pursued further. The Chamber noted that the applicant had paid over
the amounts in question during the actual hearing and specified that
its decision to discontinue the proceedings was final.
PROCEEDINGS BEFORE THE COMMISSION
82. In the application which he lodged with the Commission on
3 July 1973, Dr. König complained of the dilatory nature of the
proceedings before the Frankfurt Administrative Court and claimed that
he was the victim of a violation of Article 6 (art. 6) of the
Convention.
The Commission declared the application admissible on 27 May 1975.
83. In its report of 14 December 1976, the Commission expressed the
opinion:
- by ten votes to six, that Article 6 para. 1 (art. 6-1) of the Convention
was applicable to the rights claimed by the applicant before the
administrative courts;
- by nine votes to six, with one abstention, that in the instant case
there was a violation of Article 6 para. 1 (art. 6-1) of the Convention.
The report contains various separate opinions.
FINAL SUBMISSIONS MADE TO THE COURT
84. In her memorial of 18 July 1977, the Agent of the Government
submitted as follows:
"I would ... at this stage limit my request to asking the Court to
hold
that Article 6 para. 1, first sentence (art. 6-1), of the Convention is
not applicable to the administrative court proceedings brought by the
applicant against the withdrawal of the authorisation to practise
medicine and against the withdrawal of the authorisation to run a
private clinic and that the Federal Republic of Germany has
accordingly not violated the Convention in the said proceedings".
At the oral hearing on 16 November 1977, the Agent of the Government
requested the Court to hold
"that the Federal Republic of Germany has not violated Article 6
(art. 6) of the Convention".
AS TO THE LAW
1. On the alleged violation of Article 6 para. 1 (art. 6-1) of the
Convention
85. The Court recalls that neither the disciplinary proceedings
against Dr. König - which in the event took place before the
professional tribunals - nor the criminal proceedings instituted
against him are in issue in the present case (see paragraph 18 above).
The applicant complains of the length of the actions he brought before
the Frankfurt Administrative Court (see paragraph 18 above). He
alleges that there has been a violation of 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 charges 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."
The Court has therefore to decide whether Article 6 para. 1 (art. 6-1)
is applicable in the present case and, if so, whether the criterion of
a "reasonable time" appearing in that Article (art. 6-1) was respected
in each of the two sets of judicial proceedings concerned.
(a) On the applicability of Article 6 para. 1 (art. 6-1) of the Convention
86. The majority of the Commission is of the opinion that
Article 6 para. 1 (art. 6-1) is applicable to the rights claimed by the
applicant before the Frankfurt Administrative Court, namely the right
to run his clinic and the right to exercise his profession of medical
practitioner; it considers these rights to be "civil". The majority is
divided into two groups which reach the same conclusion, albeit for
different reasons.
The correctness of this opinion is disputed by the Government.
87. The Court notes at the outset that, as is not contested, under the
legislation of the State concerned the actions brought by the
applicant before the German courts concern "rights". The difference of
view between Commission and Government relates only to the question
whether the present case involves disputes ("contestations") over
civil rights within the meaning of Article 6 para. 1 (art. 6-1)
of the Convention.
88. Both the Commission and the Government agree that the concept of
"civil rights and obligations" cannot be interpreted solely by
reference to the domestic law of the respondent State.
The problem of the "autonomy" of the meaning of the expressions used
in the Convention, compared with their meaning in domestic law, has
already been raised before the Court on several occasions. Thus, it
has decided that the word "charge" appearing in Article 6 para. 1
(art. 6-1) has to be understood "within the meaning of the Convention"
(Neumeister judgment of 27 June 1968, Series A no. 8, p. 41, para. 18, as
compared with the second sub-paragraph on p. 28 and the first
sub-paragraph on p. 35; see also Wemhoff judgment of 27 June 1968,
Series A no. 7, pp. 26-27, para. 19; Ringeisen judgment of 16 July 1971,
Series A no. 13, p. 45 para. 110; Engel and others judgment of
8 June 1976, Series A no. 22, p. 34 para. 81). The Court has also
recognised, in the context of the case of Engel and others, the
"autonomy" of the concept of "criminal" within the meaning of
Article 6 para. 1 (art. 6-1) (above-mentioned Engel and others judgment,
p. 34, para. 81). Again, the Court has already acknowledged, implicitly,
that the concept of "civil rights and obligations" is autonomous
(above-mentioned Ringeisen judgment, p. 39, para. 94).
The Court confirms this case-law on the present occasion. Hence, it
considers that the same principle of autonomy applies to the concept
in question; any other solution might lead to results incompatible
with the object and purpose of the Convention (see, mutatis mutandis,
the above-mentioned Engel and others judgment, p. 34, para. 81).
89. Whilst the Court thus concludes that the concept of "civil rights
and obligations" is autonomous, it nevertheless does not consider
that, in this context, the legislation of the State concerned is
without importance. Whether or not a right is to be regarded as civil
within the meaning of this expression in the Convention must be
determined by reference to the substantive content and effects of the
right - and not its legal classification - under the domestic law of
the State concerned. In the exercise of its supervisory functions, the
Court must also take account of the object and purpose of the
Convention and of the national legal systems of the other Contracting
States (see, mutatis mutandis, the above-mentioned Engel and others
judgment, p. 35, para. 82).
90. The Government submit that Article 6 para. 1 (art. 6-1) covers
private-law disputes in the traditional sense, that is disputes
between individuals or between an individual and the State to the
extent that the latter had been acting as a private person, subject to
private law; amongst other things, disputes between an individual and
the State acting in its sovereign capacity would be excluded from the
ambit of that Article (art. 6-1).
As regards the field of application of Article 6 para. 1 (art. 6-1), the
Court held in its Ringeisen judgment of 16 July 1971 that
"for Article 6 para. 1 (art. 6-1) to be applicable to a case
('contestation') it is not necessary that both parties to the
proceedings should be private persons .... The wording of
Article 6 para. 1 (art. 6-1) is far wider; the French expression
'contestations sur (des) droits et obligations de caractère civil'
covers all proceedings the result of which is decisive for private
rights and obligations. The English text, 'determination of ... civil
rights and obligations', confirms this interpretation. The character
of the legislation which governs how the matter is to be determined
... and that of the authority which is invested with jurisdiction in
the matter ... are therefore of little consequence" (Series A no. 13,
p. 39, para. 94).
If the case concerns a dispute between an individual and a public
authority, whether the latter had acted as a private person or in its
sovereign capacity is therefore not conclusive.
Accordingly, in ascertaining whether a case ("contestation") concerns
the determination of a civil right, only the character of the right at
issue is relevant.
91. The Court recalls firstly that the applicant's appeals before the
German administrative courts do not concern the right to be authorised
to run a clinic and to be authorised to exercise the medical
profession (see paragraphs 20, 21, 28 and 51 above): in challenging
the withdrawal of his authorisations ordered by the competent
authorities, Dr. König is claiming the right to continue his
professional activities for which he had obtained the necessary
authorisations. If the proceedings before the administrative courts
were successful, the applicant would not be granted new
authorisations: the Court would simply annul the withdrawal decisions
taken by the Regierungspräsidenten in Wiesbaden and Darmstadt
(see Article 42 of the German Code of Administrative Procedure).
Therefore, it remains to be ascertained whether Dr. König's right to
continue to run a private clinic and his right to continue to exercise
the medical profession are civil rights within the meaning of
Article 6 para. 1 (art. 6-1).
92. The Court notes that, in the Federal Republic of Germany, the
running of a private clinic is in certain respects a commercial
activity carried on with a view to profit, classified by German law as
a "Gewerbe". This activity is carried on in the private sector through
the conclusion of contracts between the clinic and its patients and
resembles the exercise of a private right in some ways akin to the
right of property. Private clinics are certainly subject to
supervision effected by the authorities in the public interest in
order, inter alia, to protect health; supervision in the public
interest, which moreover exists as a general rule for all private
professional activities in the member States of the Council of Europe,
cannot of itself lead to the conclusion that the running of a private
clinic is a public-law activity. An activity presenting, under the law
of the State concerned, the character of a private activity cannot
automatically be converted into a public-law activity by reason of the
fact that it is subject to administrative authorisations and
supervision, including if appropriate the withdrawal of
authorisations, provided for by law in the interests of public order
and public health. The Court recalls in this context the Ringeisen
case in which supervision by the public authorities concerned a
contract for sale between private individuals: the Court nonetheless
concluded that the right at issue had a civil character
(above-mentioned judgment, p. 39, para. 94).
93. The medical profession counts, in the Federal Republic of Germany,
among the traditional liberal professions; moreover, Article 1 para. 2 of
the Federal Act expressly so provides (see paragraph 20 above).
Even under the national health scheme, the medical profession is not a
public service: once authorised, the doctor is free to practise or
not, and he provides treatment for his patients on the basis of a
contract made with them. Of course, besides treating his patients, the
medical practitioner, in the words of the above-mentioned Act, "has
the care of the health of the community as a whole". This
responsibility, which the medical profession bears towards society at
large, does not, however, alter the private character of the medical
practitioner's activity: whilst of great importance from the social
point of view, that responsibility is accessory to his activity and
its equivalent is to be found in other professions whose nature is
undeniably private.
94. In these conditions, it is of little consequence that here the
cases concern administrative measures taken by the competent bodies in
the exercise of public authority. Neither does it appear pertinent
that, under the law of the State concerned, it is for administrative
courts to give the decision on these cases and to do so in proceedings
which leave to the court the responsibility for the investigation and
for the conduct of the trial. All that is relevant under Article 6 para. 1
(art. 6-1) of the Convention is the fact that the object of the cases
in question is the determination of rights of a private nature.
95. Since it thus considers the rights affected by the withdrawal
decisions and forming the object of the cases before the
administrative courts to be private rights, the Court concludes that
Article 6 para. 1 (art. 6-1) is applicable, without it being necessary in
the present case to decide whether the concept of "civil rights and
obligations" within the meaning of that provision extends beyond those
rights which have a private nature.
96. Before the Commission, the applicant claimed, in the alternative,
that, in view of the nature of the complaints which led to the
decisions he contests, he is in reality faced with a "criminal charge"
within the meaning of Article 6 para. 1 (art. 6-1) of the Convention.
In its report, the Commission recalled that it had rejected this claim
in its decision on the admissibility of the application.
The Court notes first of all that this claim by the applicant related
to the same facts as his contention that the actions before the German
courts concerned civil rights. This was accordingly not a separate
complaint but a formal submission or a mere legal argument. However,
once a case is duly referred to it, the Court may take cognisance of
every question of law arising in the course of the proceedings and
concerning facts submitted to its examination by a Contracting State
or by the Commission. Master of the characterisation to be given in
law to the facts, the Court is empowered to examine them, if it deems
it necessary and if need be ex officio, in the light of the Convention
as a whole (see, inter alia, the judgment of 23 July 1968 on the
merits of the "Belgian Linguistic" case, Series A no. 6, p. 30, para. 1;
the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A
no. 12, p. 29, para. 49; the Handyside judgment of 7 December 1976,
Series A no. 24, p. 20, para. 41; the judgment of 18 January 1978 in the
case of Ireland v. the United Kingdom, Series A no. 25, p. 63, para. 157).
However, the Court does not consider that it has to examine whether in
this case paragraph 1 of Article 6 (art. 6-1) is also relevant under
the "criminal charge" head. For, although the requirements of
Article 6 (art. 6) as regards cases ("contestations") concerning civil
rights are less onerous than they are for criminal charges, this
difference is of no consequence here: all proceedings covered by
Article 6 (art. 6) are subject to the requirement of a "reasonable
time", whose observance by the German courts remains to be examined.
(b) On the observance of Article 6 para. 1 (art. 6-1) of the Convention
97. According to the Commission, the duration of the proceedings
instituted by the applicant before the administrative courts exceeded
the "reasonable time" stipulated by Article 6 para. 1 (art. 6-1)
of the Convention. Before the Court, the Agent of the Government
conceded that the length of those proceedings was a serious matter.
She referred, moreover, to certain proposals under discussion in the
Federal Republic of Germany designed to accelerate the procedure
before the administrative courts. Although she questions whether, in
the circumstances of the case, it is possible to speak of a violation
of the Convention, she leaves it to the Court to assess whether the
duration of the proceedings was reasonable.
98. In order to be able to arrive at a decision, the Court must first
specify the period to be taken into account in the application of
Article 6 para. 1 (art. 6-1).
According to the Government and the Commission, time starts to run
from the date of the filing of the appeals with the Administrative
Court of first instance. The Court does not share this view. As the
Court stated in its Golder judgment of 21 February 1975, "it is
conceivable ... that in civil matters the reasonable time may begin to
run, in certain circumstances, even before the issue of the writ
commencing proceedings before the court to which the plaintiff submits
the dispute" (Series A no. 18, p. 15, para. 32). This is the situation in
the applicant's case, since he could not seise the competent court
before having the lawfulness and the expediency of the impugned
administrative acts examined in preliminary proceedings (Vorverfahren)
before the administrative authority (Article 68 of the German Code of
Administrative Procedure). Consequently, in the present case, the
reasonable time stipulated by Article 6 para. 1 (art. 6-1) starts to run
on the day on which Dr. König lodged an objection against the
withdrawals of his authorisations.
As regards the period to which Article 6 (art. 6) is applicable, the
Court has held that in criminal matters this period covers the whole
of the proceedings in question, including appeal proceedings
(above-mentioned Wemhoff judgment, pp. 26 and 27, paras. 18 and 20;
above-mentioned Neumeister judgment, p. 41, para. 19; Delcourt judgment of
17 January 1970, Series A no. 11, pp. 13-15, paras. 25 and 26). The
position - as, moreover, the Government concede - is no different in
the case of disputes ("contestations") over civil rights and
obligations for which Article 6 para. 1 (art. 6-1) likewise requires that
there be - at first instance, on appeal or in cassation - a
determination.
99. The reasonableness of the duration of proceedings covered by
Article 6 para. 1 (art. 6-1) of the Convention must be assessed in each
case according to its circumstances. When enquiring into the
reasonableness of the duration of criminal proceedings, the Court has
had regard, inter alia, to the complexity of the case, to the
applicant's conduct and to the manner in which the matter was dealt
with by the administrative and judicial authorities (above-mentioned
Neumeister judgment, pp. 42-43, paras. 20-21; above-mentioned Ringeisen
judgment, p. 45, para. 110). The Court, like those appearing before it,
considers that the same criteria must serve in the present case as the
basis for its examination of the question whether the duration of the
proceedings before the administrative courts exceeded the reasonable
time stipulated by Article 6 para. 1 (art. 6-1).
100. Before embarking upon this examination, the Court wishes to
emphasise that it is not its function to express an opinion on the
German system of procedure before administrative courts which, as the
Agent of the Government stated, enjoys a long tradition. Admittedly,
the present system may appear complex on account of the number of
courts and remedies but the Court is not unaware that the explanation
for this situation is to be found in the eminently praiseworthy
concern to reinforce the guarantees of individual rights. Should these
efforts result in a procedural maze, it is for the State alone to draw
the conclusions and, if need be, to simplify the system with a view to
complying with Article 6 para. 1 (art. 6-1) of the Convention.
(i) The proceedings relative to the withdrawal of the authorisation to
run the clinic
101. These proceedings, which began on 13 July 1967 when the applicant
filed an objection against the withdrawal of the authorisation
(see paragraph 28 above), have still not been concluded: the Hessen
Administrative Court of Appeal has not yet ruled on Dr. König's appeal
against the judgment of 22 June 1977 of the 4th Chamber of the
Frankfurt Administrative Court.
102. It is clearly a matter for serious concern - as the Government
moreover admit - that more than ten years and ten months have elapsed
without a decision on the merits of the case and that it was necessary
to wait for almost ten years for the judgment at first instance.
It is true - and on this point the Court shares the Government's
opinion - that the 4th Chamber of the Administrative Court encountered
great difficulties in tracing witnesses several of whom had in the
meantime changed name or address (see paragraphs 30, 32, 35, 36, 37
and 41 above). This applied particularly to the witness Xymenes whom
the Chamber was not able to hear until thirty-three months after the
first summons (see paragraphs 30, 32 and 35 above). However, the
Government in no way pleaded that the case raised exceptionally
complex issues of fact or of law.
The Court appreciates that there was a certain interrelation between
this action and the action - pending before the 2nd Chamber of the
same court - relative to the withdrawal of the authorisation to
practise, since the applicant's activities as manager of a clinic
were, to a large extent, indistinguishable from his activities as a
medical practitioner. However, this can scarcely have caused
complications. On the contrary, the 4th Chamber had at its disposal
the file of the Regional Tribunal for the Medical Profession which, on
14 October 1970, had declared Dr. König unfit to practise
(see paragraphs 16 and 30 above). On this point the Court notes that
the Agent of the Government herself is of the opinion that better
co-ordination between the two Chambers would have been desirable.
103. On the other hand, the Government laid great weight on the
applicant's behaviour during the proceedings: in their view, Dr. König
is personally responsible for about half of the length of the
proceedings because of the way in which he organised the conduct of
his case. The Government cited especially the frequent changes of
lawyer, the juxtaposition of various appeals and the fresh proposals
of evidence at different stages.
The repeated changing of lawyers - which was certainly within
Dr. König's rights - had repercussions on the progress of the
proceedings since the different lawyers inevitably needed some time to
acquaint themselves with the file. It must be borne in mind that in
fact the delays mentioned by the Government do not total more than a
few months (see paragraphs 36 and 45 above). The Court also observes
that Dr. König did not discharge his first lawyer until 24 May 1971,
that is after nearly four years of procedure (see paragraph 33 above).
The Court likewise considers that some delays necessarily resulted
from the applicant's various appeals and the overlapping of
proceedings which they occasioned. However, the Court notes that all
those appeals were made after the month of July 1973, that is after
six years of procedure and at a time when Dr. König had already been
deprived for two years of the authorisation to practise. In fact, the
first of the two challenges - which, like the second, was included in
a disciplinary complaint and, what is more, was upheld - dates from
22 August 1973 (see paragraph 39 above); it was not until two years
later, that is, on 10 October 1975, that Dr. König made
- unsuccessfully - the second challenge (see paragraph 46 above).
Nevertheless, even before the decision on the first challenge, the
applicant had, on 19 October 1973, filed with the Federal
Constitutional Court an appeal against the length of the proceedings
of which he had also complained as early as 3 July in his application
to the Commission (see paragraphs 1, 39 and 41 above). Finally,
another disciplinary complaint was filed by Dr. König with the
President of the Hagen District Court in April 1974, that is, before
the three 1973 proceedings were terminated (see paragraph 40 above).
Obviously this overlapping did not make the 4th Chamber's task any
easier, although only the challenges of 1973 and 1975 gave rise, in
law, to an interruption of its proceedings in the strict sense.
The Court is also inclined to share the Government's view that, by
tendering fresh evidence after witnesses had been heard, the applicant
put difficulties in the way of the investigation of the case.
The evidence before the Court reveals that, after the order of
26 August 1969, the hearing of further witnesses was requested by
Dr. König on 24 September 1970, 12 February 1973 and 25 August 1974
(see paragraphs 31, 36 and 42 above); his first request was subject to
the proviso that he would abandon it if the Regierungspräsident for
his part put forward no further witnesses (see paragraph 31 above).
Finally, although the Court supplemented its order of 26 August 1969
on 30 March and 16 August 1973, only the second of these decisions
seems to have led to a fresh proposal of evidence from Dr. König
(see paragraphs 37, 38 and 42 above).
104. Having regard to the suprising length of the proceedings, the
Court has examined each detail of the 4th Chamber's conduct of the
case.
Although the Court cannot reproach the Chamber for having insisted on
hearing Mr. Xymenes or for having supplemented, after three years and
seven months, its order of 26 August 1969, it notes, as did the
Commission, that the exchange of pleadings with which the proceedings
opened continued until 2 April 1969, that is, for nearly seventeen
months. Apart from the researches for the addresses of certain
witnesses and the request made to the professional tribunals for their
files (see paragraphs 29 and 30 above), the first step in the
investigation was not taken until 26 August 1969 when the 4th Chamber
made its order on the evidence to be adduced (see paragraph 30 above).
The Commission rightly stresses, furthermore, that the Chamber waited
for seventeen months before calling for the professional tribunals'
files despite the interrelation of the action before it and the action
relative to the withdrawal of the authorisation to practise.
Again, the despatch of the file to the authorities and courts to which
the applicant had made his various appeals caused appreciable losses
of time (see paragraphs 30, 31, 35, 38, 39, 40, 41, 42 and 45 above).
To the extent that it was necessary for the competent authority to
have the complete file at its disposal, it would have been desirable
to consider the possibility of having a copy made.
It must also be observed that the 4th Chamber decided on
10 February 1975, that is, more than seven years after being seised of
the case, to postpone its judgment until the outcome of the action
relative to the withdrawal of the authorisation to practise which had
been pending for more than three years before the 2nd Chamber of the
same court (see paragraphs 44 and 51 above). This decision was taken
after three orders had been made concerning the evidence to be adduced
by the parties and after the hearing of numerous witnesses. On this
point, the Government admitted that, with the benefit of hindsight,
doubts could arise as to whether the court properly conducted the
enquiry. In fact, the European Court is unable to discern what the
4th Chamber, which in 1977 was able to dismiss the applicant's appeal
on the basis of evidence taken between November 1969 and August 1974
(see paragraph 47 above), was expecting from the outcome of the
proceedings pending before the 2nd Chamber. In this connection, the
Court recalls that the latter proceedings had been suspended on
25 September 1973 to await the outcome of the criminal proceedings and
were not resumed until 30 June 1975. The Court concludes that, in
these circumstances, the 4th Chamber did not have sufficient reason
for prolonging the proceedings in this way, even if account is taken
of the applicant's consent (see paragraphs 44 and 46 above).
105. In an overall assessment of the various factors, the Court
concludes that the delays occasioned by the difficulties in the
investigation and by the applicant's behaviour do not of themselves
justify the length of the proceedings. Without attaching decisive
importance to any one step taken by the 4th Chamber rather than to
another, the Court is in fact of the opinion that the principal reason
for the length of the proceedings is to be found in the conduct of the
case. The Court finds that it would have been possible for the
4th Chamber to bring the proceedings to an end at an earlier date.
Taking into account the fact that the proceedings began on
13 July 1967 and ended on 22 June 1977, the Court concludes that the
"reasonable time" stipulated by Article 6 para. 1 (art. 6-1) was exceeded.
The Government stressed that Dr. König's appeal had the effect of
suspending enforcement of the withdrawal of the authorisation to run
his clinic (see paragraph 28 above) and that this feature of the
proceedings might have been to his advantage. The Court recognises
that this suspensive effect may have a bearing on the interpretation
of the concept of "reasonable time". However, in view of the total
duration of the proceedings and the prolonged uncertainty in which the
applicant found himself, the Court cannot depart, on the ground of the
appeal's suspensive effect, from the assessment at which it has
arrived above.
(ii) The proceedings relative to the withdrawal of the authorisation
to practise
106. These proceedings began on 18 May 1971 when the applicant lodged
his objection against the withdrawal of the authorisation to practise.
The 2nd Chamber of the Frankfurt Administrative Court gave judgment on
9 June 1976, that is after more than five years of proceedings, and
the Hessen Administrative Court of Appeal on 2 May 1978.
107. Although the length of these particular proceedings is not as
great as that of the action relative to the withdrawal of the
authorisation to run the clinic, it does not appear to the Court to be
less serious.
This action seems less complex than the action before the 4th Chamber
of the Administrative Court: not only did the 2nd Chamber encounter
fewer difficulties as regards the hearing of the witnesses summoned,
but also the enquiry was facilitated by the fact that, as early as
14 October 1970, the Regional Tribunal for the Medical Profession had
declared Dr. König unfit to practise (see paragraph 16 above).
As for the interrelation of the two actions, on which the Government
relied, it should be noted that this could not have created any
complications for the 2nd Chamber: on the contrary, it was able to
profit from the results of the investigation conducted by the
4th Chamber whose proceedings had already been in progress for almost
four years when Dr. König challenged the withdrawal of the
authorisation to practise.
108. Dr. König's behaviour in the action before the 2nd Chamber
differs from his behaviour before the 4th Chamber in but a few
respects.
The Court notes to begin with that the applicant changed lawyer for
the first time on 12 February 1973, that is after sixteen months of
procedure (see paragraph 54 above). Again, he filed two challenges
which, together with those directed against the 4th Chamber, were
included in disciplinary complaints - the first on 22 August 1973
after about two years of procedure, the second on 10 October 1975
(see paragraphs 56 and 67 above). Furthermore, Dr. König made three
constitutional appeals against the length of the proceedings, the
first on 19 October 1973, the second probably in April 1974 and the
third on 10 July 1975 (see paragraphs 58, 60 and 64 above). Before
the first appeal to the Federal Constitutional Court, he had also
complained of the length of the two actions in his application of
3 July 1973 to the Commission. As for the manner of tendering his
evidence, the applicant does not seem to have proceeded in the same
way as he did before the 4th Chamber.
Nevertheless, Dr. König's behaviour certainly caused delays. The Court
notes, in particular, that the delays mentioned by the Government as
attributable to the changes of lawyer seem more important in this
action (see paragraphs 54, 62 and 67 above).
109. As regards the procedure followed by the Frankfurt Administrative
Court, failure to join the case relative to the withdrawal of the
authorisation to practise and the case relative to the withdrawal of
the authorisation to run the clinic certainly prolonged the two
actions. The Court observes, moreover, that, in the appellate
proceedings, the two cases were assigned to the same Chamber of the
Hessen Administrative Court of Appeal.
110. Turning next to the conduct of the case by the 2nd Chamber
itself, the Court notes that the Chamber was little concerned to
advance the proceedings.
The first sitting, for the hearing of witnesses and of argument, was
not fixed until 14 July 1975 (see paragraph 65 above). According to
the evidence before the Court, the only steps in the investigation
taken by the 2nd Chamber between 25 October 1971, when it was seised,
and July 1975 were the request of 2 November 1971 to the
Regierungspräsident to submit the relevant files, the order of
5 September 1972 calling for the production of certain criminal files
and the decision of the same date that the Regional Medical Society be
joined to the proceedings (see paragraphs 52 and 53 above).
Admittedly, on 14 September 1972 the court suggested a friendly
settlement of the dispute but less than a month later Dr. König
rejected this proposal (see paragraph 53 above). In addition, the
Court notes, as did the Commission, that the 2nd Chamber waited more
than 10 months before deciding to join the Regional Medical Society
whose requests nevertheless had set the professional tribunals'
proceedings in motion and led to the withdrawal of the authorisations
(see paragraphs 16, 27, 49 and 53 above).
Again, considerable delays were caused by the despatch of the file to
the authorities and courts to which the applicant had made his various
appeals (see paragraphs 56, 58, 62, 64, 66 and 67 above). On this
point, the Court refers to its findings in connection with the
proceedings before the 4th Chamber (see paragraph 104 above).
However, the principal cause of the length of this action is its
suspension - decided on 25 September 1973 and maintained until
30 June 1975 - for the purpose of awaiting the outcome of the criminal
proceedings taken against Dr. König as early as 27 July 1972.
Although Dr. König's conviction might have had some relevance for the
investigation of the case pending before the 2nd Chamber, the Court
notes that the charges against the applicant referred to events which
occurred perhaps in part before the decision of the
Regierungspräsident on the objection but in any event after the
withdrawal of the authorisation to practise (see paragraphs 49, 51,
71, 72 and 78 above). Again, although the 2nd Chamber enquired on
several occasions about the state of the criminal proceedings, it did
not draw in due time the conclusions from the information given to it.
In fact, the Court observes that the 2nd Chamber knew as early as
16 February 1974 that the hearings before the criminal court could not
be held before the second half of the year; on 8 May, the latter court
had indicated that judgment could hardly be given within six months,
since the applicant had challenged one of the judges and extensive
appellate proceedings had been instituted (see paragraphs 59 and
61 above). Despite the uncertainties overshadowing the criminal
proceedings, the 2nd Chamber still delayed for more than a year before
deciding, on 30 June 1975, not to await their outcome any longer.
In the Court's opinion, the 2nd Chamber's suspension of its
proceedings for more than twenty-one months was not justified in the
circumstances of the case.
111. In an overall assessment of the various factors and taking into
account what was at stake in the proceedings, namely, Dr. König's
whole professional livelihood, the Court considers that,
notwithstanding the delays attributable to the applicant's behaviour,
the investigation of the case was not conducted with the necessary
expedition.
The Court has borne in mind the arguments which the Agent of the
Government based on what she referred to as interim judicial
protection (einstweiliger Rechtsschutz). In fact, the applicant twice
requested, once in 1971 and once in 1974, restoration of the
suspensive effect of his appeal against the withdrawal of the
authorisation to practise (see paragraphs 50, 62 and 63 above).
The 2nd Chamber and subsequently the Hessen Administrative Court of
Appeal rejected these requests in reasoned decisions which touched on
the merits of the case, the proceedings concerning the second request
having, moreover, lasted more than fifteen months in all. The Court
does not exclude the possibility that the existence of such a
procedure may have an incidence on the assessment of the duration of
the principal proceedings. However, in view of the circumstances
noted above, the existence of that procedure cannot in the present
case affect the overall assessment of the factors taken into account
by the Court.
Accordingly, the Court considers that in this case the "reasonable
time" stipulated by Article 6 para. 1 (art. 6-1) of the Convention was
exceeded.
2. On the application of Article 50 (art. 50) of the Convention
112. Under Article 50 (art. 50) of the Convention, if the Court finds
"that a decision or a measure taken" by any authority of a Contracting
State "is completely or partially in conflict with the obligations
arising from the ... Convention, and if the internal law of the said
[State] allows only partial reparation to be made for the consequences
of this decision or measure", the Court "shall, if necessary, afford
just satisfaction to the injured party".
The Rules of Court specify that when the Court "finds that there is a
breach of the Convention, it shall give in the same judgment a
decision on the application of Article 50 (art. 50) of the Convention
if that question, after being raised under Rule 47 bis, is ready for
decision; if the question is not ready for decision, the [Court] shall
reserve it in whole or in part and shall fix the further procedure"
(Rule 50 para. 3, first sentence, read in conjunction with Rule 48 para. 3).
113. At the hearing on 17 November 1977, the Court, acting in
pursuance of Rule 47 bis, invited those appearing before it to present
their observations on the question of the application of Article 50
(art. 50) of the Convention in the present case.
Mr Burger's reply reveals that Dr. König is not claiming compensation
"for all the damage he had suffered, as the result of interruption of
his work as a medical practitioner and operator of a clinic for a
period that already exceeds ten years". In point of fact, the
applicant leaves to the Court the assessment of "any compensation that
he might expect under Article 50 (art. 50)" and also the question
whether such compensation should "include the costs of [the]
proceedings" before the Commission and the Court.
The Agent of the Government, for her part, declared that she reserved
her position.
114. The Court notes that the applicant does not claim compensation
for all the material damage allegedly suffered; however, he expects to
be granted just satisfaction if the Court concludes that there has
been a breach of the Convention, without for the moment indicating the
amount of his claim.
The information supplied by the applicant on this point and the
observations of the Agent of the Government show that the question of
the application of Article 50 (art. 50) of the Convention is not ready
for decision; the Court must therefore reserve the question and give a
decision on the further procedure relative thereto.
FOR THESE REASONS, THE COURT
1. holds by fifteen votes to one that Article 6 para. 1 (art. 6-1)
is applicable to the proceedings relative to the withdrawal of the
applicant's authorisation to run his clinic;
2. holds by fourteen votes to two that Article 6 para. 1 (art. 6-1)
is applicable to the proceedings relative to the withdrawal of the
applicant's authorisation to practise;
3. holds by fifteen votes to one that there has been a violation of
Article 6 para. 1 (art. 6-1) as regards the duration of the proceedings
relative to the withdrawal of the authorisation to run the clinic;
4. holds by fifteen votes to one that there has been a violation of
Article 6 para. 1 (art. 6-1) as regards the duration of the proceedings
relative to the withdrawal of the authorisation to practise;
5. holds unanimously that the question of the application of
Article 50 (art. 50) is not ready for decision;
accordingly,
(a) reserves the whole of the question of the application of
Article 50 (art. 50);
(b) invites the Commission's delegates to transmit to the Court,
within three months from the delivery of this judgment, such claims as
may be presented by the applicant and any observations which the
delegates may have thereon;
(c) decides that the Government shall have the right to reply to such
claims and observations within two months from the date on which the
Registrar shall have communicated them to the Government;
(d) reserves the further procedure to be followed on this question.
Done in French and English, the French text being authentic, at the
Human Rights Building, Strasbourg, this twenty-eighth day of June, one
thousand nine hundred and seventy-eight.
Signed: Giorgio BALLADORE PALLIERI
President
On behalf of the Registrar
Signed: Herbert PETZOLD
Deputy Registrar
The separate opinions of the following judges are annexed to the
present judgment in accordance with Article 51 para. 2 (art. 51-2)
of the Convention and Rule 50 para. 2 of the Rules of Court :
Mr. WIARDA;
Mr. MATSCHER;
Mr. PINHEIRO FARINHA.
Initialled: G. B. P.
Initialled: H. P.
SEPARATE OPINION OF JUDGE WIARDA
(Translation)
I share the opinion set out in the judgment, with the sole exception
of the reasons concerning the application of Article 6 para. 1 (art. 6-1)
of the Convention to the proceedings before the Frankfurt
Administrative Court relating to the withdrawal of the authorisations
to run a clinic and to practise medicine.
According to the reasoning in the judgment, the rights at issue in
these actions were the right to continue to run a private clinic and
the right to continue to practise medicine; these two rights are
classified as rights of a private nature and thus as civil rights
within the meaning of the Convention.
I agree with the view that, whatever scope the concept of civil rights
and obligations within the meaning of the Convention may have, it in
any event includes rights and obligations of a private nature in the
traditional sense; however, I do not consider that the right to run a
clinic and the right to practise medicine can be classified as rights
of a private nature within the traditional meaning of that concept.
In my opinion, the classification of a subjective right depends on the
classification of the rules of the objective law in which that
subjective right has its source.
In German (objective) law, the (subjective) right to run a private
clinic and the (subjective) right to practise medicine depend solely
on obtaining and conserving the authorisations required by law for
this purpose; however, the conditions which must be fulfilled to
obtain and conserve such authorisations are found in (objective)
public (administrative) law, not in (objective) private law. For this
reason, I believe that these rights should be classified not as civil
but as public rights.
This does not mean that I cannot agree with the Court's conclusion.
According to the Ringeisen judgment, the question whether a case
("contestation") is to be considered as a case relating to "civil
rights and obligations" depends neither on the character of the
legislation which governs how the matter is to be determined nor on
the character of the authority invested with jurisdiction, but on the
character of the rights and obligations for which the result of the
proceedings is decisive.
In the present case, the result of the proceedings instituted by
Dr. König before the Frankfurt Administrative Court was decisive for
the conservation or the restoration of his status as owner and manager
of a private clinic and as a medical practitioner, and for the
conservation or the restoration of the complex of rights and
obligations attaching to such status.
This complex of rights and obligations was mixed in character.
Public law played a part (Gewerbeordnung, Bundesärzteordnung), but, in
my view, the area governed by private law predominated. Dr. König
owned his clinic and his practice and was exercising his rights of
property in the use which he made of them. The clinic, the pactice and
his patients represented an element of "goodwill" which likewise was
in the nature of a private right similar, in some respects, to the
right of property. From the legal point of view, the running of the
clinic and the exercise of his profession were carried on through the
conclusion of contracts.
The withdrawal of the authorisations needed by Dr. König to continue
running his clinic and exercising his profession amounted to an
interference that in many respects deprived this complex of rights and
obligations - for the greater part governed by private law - of the
value which they represented.
It was the justification for the withdrawals that was at stake in the
proceedings before the Frankfurt Administrative Court which underlie
the present case.
For this reason, I believe, that it is legitimate to classify the
cases ("contestations") in issue as cases involving "civil rights and
obligations" within the meaning of Article 6 para. 1 (art. 6-1)
of the Convention.
SEPARATE OPINION OF JUDGE MATSCHER
(Translation)
A. I am not, for the time being, in a position 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, support 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 judgment 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 judgment 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 reaffirming 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 confuse 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 reached 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 conclusion 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 object
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 what 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 system 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 conditions 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 administrative 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 has 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 standpoint 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 function 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 would 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 considerations 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. cases traditionally heard by the
courts): entitlement to all the guarantees provided for in Article 6
(art. 6);
(b) disputes on other matters (administrative 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).
SEPARATE OPINION OF JUDGE PINHEIRO FARINHA
(Translation)
l. I find myself in disagreement with the Court's reasoning as regards
two paragraphs in the judgment and item 2 of the operative provisions.
2. With regard to paragraph 93 of the judgment, while I agree that the
medical profession counts among the traditional liberal professions in
the Federal Republic of Germany; that, even under the national health
scheme, the medical profession is not a public service; that the
doctor, who is free to practise or not, provides treatment for his
patients on the basis of a contract; and that the medical
practitioner's activity has a private character, I still feel obliged
to point out that:
(a) according to paragraph 1 of Article 1 of the Federal Act, the
medical practitioner shall have the care of the health of each
individual and of the community as a whole; under paragraph 2, he
exercises a liberal profession and not a trade or business
(paragraph 20 of the judgment);
(b) in order to be able to practise on a permanent basis, an
authorisation issued by the appropriate services of the Länder is
required (Articles 2 para. 1 and 12 of the Federal Act, Article 35 of the
Regulations). This authorisation is granted on request if the person
concerned:
l. ...
2. has not been guilty of behaviour showing that he is unfit or
unreliable to exercise the profession,
3. ...
4. ...
(paragraph 20 of the judgment);
(c) an authorisation that has been issued must be withdrawn if one of
those conditions either was not satisfied at the time of the grant or
ceases to be met afterwards (Article 5 of the Federal Act;
paragraph 20 of the judgment);
(d) although the medical profession also has the purpose of providing
an income, its primary aim is disinterested, namely rendering
assistance to mankind (paragraph 22 of the judgment).
Bearing these quotations in mind and remembering the Hippocratic Oath,
which includes a promise by the doctor that: "With purity and with
holiness I will pass my life and practise my art ... While I continue
to keep this oath unviolated, may it be granted to me to enjoy life
and the practice of the art, respected by all men, in all times.
But should I trespass and violate this oath, may the reverse be my
lot!" - I am bound to conclude that there is a total difference
between, firstly, the running of a clinic (a trade or business;
paragraph 21 of the judgment) and, secondly, exercise of the medical
profession, in which the spiritual element takes precedence over the
material element, since "the duties of dignity, disinterestedness and
independence which members of the liberal professions must observe
apply very strictly to doctors" (J. Savatier, La profession libérale,
Etude juridique et pratique, Paris, L.G.D.J., 1947, quoted in the
Encyclopédie Dalloz, III, 425).
3. With regard to paragraph 95 of the judgment, I cannot agree with
the Court in its view of the decision to withdraw the authorisation to
practise. I should like to point out that I agree with paragraph 94
and 95 on the decision to withdraw the authorisation to run the
clinic.
In my view, the right called in question by the withdrawal of the
authorisation to practise is a public, and not a civil, right.
I do not believe that a distinction can be made, under Article 6
(art. 6) of the Convention, between the grant and the withdrawal of an
authorisation.
It must be remembered that the administrative proceedings were not
concerned directly with one or more specific private-law relationships
between Dr. König and his patients, but with his general suitability
to practise as a doctor.
Since public law is not concerned with actions but only with the aims
which the person in question claims to be pursuing (G. Balladore
Pallieri, La doctrine de l'Etat, volume II - Portuguese edition,
page 213), since the withdrawal of the authorisation to practise was
not intended to regulate specific relationships between Dr. König and
his clients - the latter being a matter for private law - but chiefly
to safeguard the health of the community as a whole, and since the
administrative authorities found that Dr. König no longer fulfilled
certain conditions of public order, lying outside the scope of private
law, I would say, unlike the Court, that Article 6 para. 1 (art. 6-1)
is not applicable to the proceedings relating to the withdrawal of the
authorisation to practise.
4. I feel obliged to accept the decision of the majority of the Court
that Article 6 para. 1 (art. 6-1) is applicable to the proceedings
relating to the withdrawal of the authorisation to practise, and to
vote on its application with regard to the duration of the
proceedings.
Disagreeing with the Court on the first question - the applicability
of Article 6 para. 1 (art. 6-1) of the Convention -, I agree with the
final decision and the arguments used to support it.
I would, however, like to indicate expressly that I would have voted
for non-violation of the Convention, on the ground of non-applicability
of Article 6 para. 1 (art. 6-1) to the proceedings relating to the
authorisation to "practise", if there had not been a prior decision on
applicability.