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You are here: BAILII >> Databases >> European Court of Human Rights >> KRASKA v. SWITZERLAND - 13942/88 [1993] ECHR 17 (19 April 1993)
URL: http://www.bailii.org/eu/cases/ECHR/1993/17.html
Cite as: 18 EHRR 188, [1993] ECHR 17, (1994) 18 EHRR 188
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In the case of Kraska v. Switzerland*,
The European Court of Human Rights, sitting, in accordance
with Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention")** and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr F. Matscher,
Mr J. De Meyer,
Mrs E. Palm,
Mr R. Pekkanen,
Mr J.M. Morenilla,
Mr A.B. Baka,
Mr M.A. Lopes Rocha,
Mr L. Wildhaber,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 28 October 1992 and
24 March 1993,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 90/1991/342/415. The first number is the case's
position on the list of cases referred to the Court in the relevant
year (second number). The last two numbers indicate the case's
position on the list of cases referred to the Court since its creation
and on the list of the corresponding originating applications to the
Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came into
force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 13 December 1991 and by the
Government of the Swiss Confederation ("the Government") on
13 February 1992, within the three-month period laid down by
Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the
Convention. It originated in an application (no. 13942/88) against
Switzerland lodged with the Commission under Article 25 (art. 25) by
a Swiss national, Mr Martin Kraska, on 2 April 1988.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Switzerland
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46); the Government's application referred to Articles 45, 47 and
48 (art. 45, art. 47, art. 48). The object of the request and of the
application was to obtain a decision as to whether the facts of the
case disclosed a breach by the respondent State of its obligations
under Article 6 para. 1 (art. 6-1) of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that
he wished to take part in the proceedings and designated the lawyer who
would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr L. Wildhaber, the elected judge of Swiss nationality (Article 43 of
the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 24 January 1992, in the presence of
the Registrar, the President drew by lot the names of the other seven
members, namely Mr F. Matscher, Mr J. De Meyer, Mrs E. Palm,
Mr R. Pekkanen, Mr J.M. Morenilla, Mr A.B. Baka and Mr M.A. Lopes Rocha
(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent of
the Government, the Delegate of the Commission and the applicant's
lawyer on the organisation of the proceedings (Rules 37 para. 1 and
38). Pursuant to the orders made in consequence, the Registrar
received the memorials of the Government and the applicant on 10 and
11 August 1992 respectively. On 17 September the Secretary to the
Commission informed the Registrar that the Delegate would submit oral
observations; he had previously produced various documents requested
by the Registrar on the President's instructions.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
26 October 1992. The Court had held a preparatory meeting beforehand,
in the course of which it rejected a request made in the applicant's
memorial for it to hear witnesses.
There appeared before the Court:
(a) for the Government
Mr P. Boillat, Head of the European Law and
International Affairs Section,
Federal Office of Justice, Agent,
Mr C.H. Brunschwiler, judge at the
Federal Court,
Mr F. Schürmann, Deputy Head of the European
Law and International Affairs Section,
Federal Office of Justice, Counsel;
(b) for the Commission
Mr L. Loucaides, Delegate;
(c) for the applicant
Mr J. Lob, avocat, Counsel.
The Court heard addresses by Mr Boillat for the Government,
Mr Loucaides for the Commission and Mr Lob for the applicant, as well
as their replies to its questions. Mr Lob lodged various documents.
AS TO THE FACTS
6. Mr Martin Kraska is a Swiss national and lives in Zurich. He
obtained his diploma in medicine in 1981 and has since practised mostly
as an assistant doctor (Assistenzarzt), for which activity he does not
require an authorisation in the Canton of Zurich.
A. Proceedings before the Zurich authorities and courts
7. On 19 October 1982 he received the authorisation to practise
independently in the canton. The authorisation was, however, withdrawn
by the Health Authority (Gesundheitsdirektion) on 26 April 1983 on the
ground that, having moved to another canton, he had not used it.
8. The applicant lodged an administrative appeal (Rekurs) which
the Cantonal Government (Regierungsrat) of Zurich rejected on
17 August 1983 for the following reasons: the possibility that a new
authorisation would be granted as soon as he returned to Zurich was not
sufficient to confer on the applicant a legally protected interest; in
any event the authorisation in question was not of general validity,
but related to a specific activity; as it was, Mr Kraska no longer
lived in the canton.
9. From 6 August to 17 September 1984 the applicant worked as an
assistant doctor in the emergency service of the District of Zurich
Medical Association (Ärztlicher Notfalldienst des Ärzteverbandes des
Bezirks Zurich).
10. On 28 August 1984 he fetched a partially paralysed patient
from a private old peoples' home and took her back to her flat, where
he treated her. Shortly afterwards he drew up a bill on an emergency
service form for 7,447.80 Swiss francs and sent it to the guardian
(gesetzlicher Vertreter) of the patient, who had been placed in
guardianship on a temporary basis on 13 September 1984. The sum in
question was to be paid directly into the applicant's post office
account and not that of the medical association.
A prosecution was subsequently brought against Mr Kraska for
fraud and various infringements of the Zurich Public Health Act 1962;
in particular it was alleged that he had treated the patient without
being in possession of an authorisation to practise medicine
independently as was required under section 7 para. 1 (a) of that Act.
The Zurich District Court (Bezirksgericht) acquitted him on
13 January 1986, finding inter alia that the indictment had not
indicated in sufficiently specific terms the medical treatment
involved.
11. In the meantime, on 31 January 1985, the applicant had
attempted to obtain a new authorisation. On 11 September 1985 the
Zurich Health Authority had refused his request on the ground that he
was not "trustworthy" within the meaning of section 8 para. 1 of the
Public Health Act.
On 1 October 1986 the Zurich Cantonal Government dismissed the
applicant's appeal. It took the view that he had infringed
section 7 para. 1 (a) of the Act by submitting a bill for the treatment
in question and that his acquittal by the District Court made no
difference in this respect. The Cantonal Government noted in
particular that in his bill the applicant had himself classified the
treatment as medical acts.
12. In an appeal (Beschwerde) to the Zurich Administrative Court
(Verwaltungsgericht) the applicant again sought the authorisation to
practise his profession independently. The court dismissed his appeal
on 11 March 1987. It also directed that he should wait until the
beginning of 1988 before re-applying.
B. Proceedings in the Federal Court
1. The public-law appeal
13. By a memorial of seventy-three pages Mr Kraska's lawyer lodged
with the Federal Court (Bundesgericht) a public-law appeal
(staatsrechtliche Beschwerde), on which five judges deliberated at a
public hearing on 22 October 1987 (section 17 para. 1 of the Federal
Courts Act). The applicant's lawyer was present in the courtroom, but
was not allowed to address the court. Judge X submitted his report;
Judge Y, who did not in fact have the status of co-rapporteur
attributed to him at paragraph 68 of the Commission's opinion, stated
that he was unable to accept the conclusions of the report and proposed
a solution contrary thereto. During the discussion which followed, a
third judge put forward a counter proposal, which was adopted by the
majority.
In a letter to his client, the lawyer described the course of
the deliberations. According to him, Judge X had proposed that the
applicant's public-law appeal should be allowed in full and that he
should be granted the authorisation to practise. Judge Y had stated
that he had been irritated by the length of the memorial, of which he
had been able to read only thirty or so pages, and had complained that
it had not been possible for him to study the file because, owing to
an error on the part of the registry, he had not received it until a
day before the hearing; he had then called for the dismissal of the
appeal, basing his view exclusively on the above-mentioned decisions
of 11 September 1985, 1 October 1986 and 11 March 1987 (see
paragraphs 11-12 above).
14. The Federal Court gave judgment on the same day. By four
votes to one, that of Judge X, it quashed the decision in so far as it
imposed a waiting period on the applicant but dismissed the remainder
of the appeal.
It first declared a number of the applicant's complaints
inadmissible. It stated, nevertheless, that in cases of this kind, in
the event of the appeal's succeeding, it could by way of exception not
only quash the contested decision, but also grant the authorisation
sought, if all the other conditions were satisfied.
The Federal Court then noted that, according to its case-law,
the right to freedom of commerce and industry, guaranteed by Article 31
of the Federal Constitution, embraced the right to practise medicine
on a professional basis.
Having examined the criticisms levelled by the health
authorities, it formed the opinion that at least two of them appeared
material to assessing the applicant's honesty: he had carried out a
medical act without the necessary authorisation; in addition, the bill
relating thereto dealt with both medical and non-medical acts and he
had drawn it up on an emergency service form, thereby giving the
impression that it concerned only the former.
15. On 8 December 1987 the Health Authority of the Canton of
Zurich granted Mr Kraska's third application for a new authorisation.
2. The applications to reopen the proceedings
16. On 6 November 1987 Mr Kraska requested the Federal Court to
re-examine its judgment of 22 October 1987, complaining that it had
given its decision without sufficient knowledge of the file.
His application was dismissed on 14 March 1988 on the ground,
inter alia, that there was no legal basis for reopening the
proceedings. The Federal Court summarised the contested deliberations
as follows:
"On the occasion of the public deliberations one judge
expressed his dissatisfaction that the documents had not been
available for a sufficiently long time (they had been sent
first to a substitute judge); he had therefore been able to
read thoroughly only the first thirty-five pages of the
- much too long - appeal memorial which comprised
seventy-three pages."
17. Mr Kraska subsequently filed three other applications for the
reopening of the proceedings in the Federal Court; they were dismissed
on 5 May and 23 August 1988 and on 6 June 1989.
PROCEEDINGS BEFORE THE COMMISSION
18. Mr Kraska lodged his application with the Commission on
2 April 1988. He complained of a violation of Article 6 paras. 1
and 2 (art. 6-1, art. 6-2) of the Convention, and of Article 3
(art. 3). A member of the Federal Court had allegedly expressed his
view on the applicant's public-law appeal without having examined the
file; the Federal Court had, he maintained, found a violation of the
Zurich Public Health Act despite the judgment of 13 January 1986
acquitting him; finally he claimed that the proceedings conducted
before the competent authorities and courts had constituted inhuman and
degrading treatment.
19. On 4 October 1990 the Commission declared the complaint based
on Article 6 para. 1 (art. 6-1) admissible, but found the remainder of
the application (no. 13942/88) inadmissible. In its report of
15 October 1991 (made under Article 31) (art. 31), the Commission
expressed the opinion by fourteen votes to five that there had been a
violation of that provision. The full text of the Commission's opinion
and of the dissenting opinion contained in the report is reproduced as
an annex to this judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 254-B of Series
A of the Publications of the Court), but a copy of the Commission's
report is available from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
20. In their memorial the Government requested the Court to "find
that Switzerland did not violate the ... Convention ... in respect of
the facts that gave rise to Mr Martin Kraska's application".
AS TO THE LAW
21. Mr Kraska claimed that he had not had a fair trial in the
Federal Court on 22 October 1987 inasmuch as one of the judges had not
been able to read the whole file. He relied on Article 6 para. 1
(art. 6-1) of the Convention, according to which:
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair ... hearing by ... [a]
... tribunal ..."
The Government contested this allegation, whereas the
Commission accepted it in substance.
22. In his oral pleadings the applicant's lawyer questioned
whether the Court had jurisdiction to rule on various points raised by
the Government concerning the facts of the case, the establishment of
which, he argued, fell to the Commission and to the Commission alone.
The Court cannot accept this argument, which is not consistent
either with Article 45 (art. 45) of the Convention, or with Rule 41 et
seq. of the Rules of Court, or with its case-law and practice. The
Court is vested with full jurisdiction within the limits of the case
as referred to it and is competent, inter alia, to take cognisance of
any question of fact which may arise in the course of consideration of
the case. Admittedly it has recourse to this power fairly
exceptionally, in view of the primary role in this sphere which
Articles 28 para. 1 and 31 (art. 28-1, art. 31) of the Convention
entrust to the Commission, but it is not bound by the findings in the
Commission's report; it remains free to make its own assessment of
these findings and, where appropriate, to depart from them, in the
light of all the material which is before it or which, if necessary,
it obtains (see, among other authorities, the De Wilde, Ooms and Versyp
v. Belgium judgment of 18 June 1971, Series A no. 12, p. 29, para. 49,
and the Cruz Varas and Others v. Sweden judgment of 20 March 1991,
Series A no. 201, p. 29, para. 74).
A. Applicability of Article 6 para. 1 (art. 6-1)
23. In the Government's contention, Article 6 para. 1 (art. 6-1)
does not apply to the examination of an application for an
authorisation to practise medicine. The grant of such an authorisation
was, they maintained, an administrative act which was subject to
certain conditions and conferred no individual right; it was
accordingly impossible to speak in the instant case of a dispute
(contestation) concerning a "right". In the alternative, if there were
such a right, it was not a "civil right", on account of the public-law
features inherent in the exercise of the profession in question.
In addition, the Government requested the Court to rule on the
applicability of Article 6 para. 1 (art. 6-1) where the Federal Court
gives judgment, on a public-law appeal, as a constitutional court.
24. The Court notes in the first place that Article 31 of the
Swiss Constitution guarantees the freedom of professional activity,
construed by the Federal Court as embracing the medical profession (see
paragraph 14 above). The dispute therefore concerned the very
existence of a right which could be said, on arguable grounds, to be
recognised under domestic law (see, inter alia, the H. v. Belgium
judgment of 30 November 1987, Series A no. 127-B, p. 31, para. 40).
In addition, the dispute was genuine and of a serious nature (see,
among other authorities, the Benthem v. the Netherlands judgment of
23 October 1985, Series A no. 97, p. 15, para. 32). As Mr Kraska had
obtained a medical diploma in 1981, he was entitled to apply for an
authorisation to practise independently in Zurich once he satisfied the
conditions laid down by law; he had held one in 1982 and 1983, but had
subsequently lost it because he no longer lived in the canton (see
paragraphs 6-7 above).
25. On the question of whether the right in issue was a "civil
right", the Court refers to its case-law concerning the medical
profession (the König v. Germany judgment of 28 June 1978, Series A
no. 27, p. 31, paras. 91-92; the Le Compte, Van Leuven and De Meyere
v. Belgium judgment of 23 June 1981, Series A no. 43, p. 20,
paras. 44-45; and the Albert and Le Compte v. Belgium judgment of
10 February 1983, Series A no. 58, p. 14, para. 27). It is true that
in Switzerland this profession has features which are undeniably of a
public-law nature: it is subject to administrative rules, enacted in
the public interest, and its exercise depends on the issue of an
authorisation by the Cantonal Health Authority. Nevertheless, the
applicant wished to work in the private sector, on the basis of
contracts concluded between him and his patients (see, mutatis
mutandis, the H. v. Belgium judgment, cited above, Series A no. 127-B,
p. 33, para. 47 (a)). The dispute between him and the Zurich
Government therefore concerned a "civil right".
26. As to whether Article 6 para. 1 (art. 6-1) also applied to the
examination of Mr Kraska's public-law appeal, the Court reiterates that
proceedings come within the scope of this provision, even if they are
conducted before a constitutional court, where their outcome is
decisive for civil rights and obligations (see, inter alia, the
Ringeisen v. Austria judgment of 16 July 1971, Series A no. 13, p. 39,
para. 94, and the Le Compte, Van Leuven and De Meyere judgment, cited
above, p. 20, para. 44); in order to determine whether this is so in
a given case, it is necessary to have regard to all the circumstances
(see, among other authorities, mutatis mutandis, the Bock v. Germany
judgment of 29 March 1989, Series A no. 150, p. 18, para. 37).
The applicant complained that the Zurich Administrative Court
had denied him the right to practise medicine independently. Moreover,
it was open to the Federal Court not only to quash the contested
judgment, but also - albeit exceptionally - to grant the authorisation
which the applicant was seeking (see paragraph 14 above). Indeed he
was able to obtain the authorisation on 8 December 1987 as a result of
the Federal Court's decision to annul the waiting period imposed on
11 March 1987 (see paragraphs 12, 14 and 15 above). The direct effect
of its judgment of 22 October 1987 on the recognition of the right
claimed is consequently beyond question.
27. In short, Article 6 para. 1 (art. 6-1) is applicable in the
instant case.
B. Compliance with Article 6 para. 1 (art. 6-1)
28. Mr Kraska inferred from certain remarks made by Judge Y during
the public deliberations in the Federal Court that the judge must have
given his opinion without thorough knowledge of the file (see
paragraphs 13 and 16 above). In his submission, there would only have
been a fair trial if each of the members of the court had been able to
examine the available documents at length.
29. The Commission stressed the particular importance of the
document which the judge had been unable to finish reading, namely the
appeal memorial or the document instituting the proceedings in the
Federal Court.
30. It falls to the Court to decide whether the contested
proceedings considered as a whole were fair within the meaning of the
Convention. The effect of Article 6 para. 1 (art. 6-1) is, inter alia,
to place the "tribunal" under a duty to conduct a proper examination
of the submissions, arguments and evidence adduced by the parties,
without prejudice to its assessment of whether they are relevant to its
decision (see, among other authorities, mutatis mutandis, the Barberà,
Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A
no. 146, p. 31, para. 68). It has to be determined whether this
condition was satisfied in the instant case.
31. As the Government pointed out, the Health Authority, the
Cantonal Government and the Administrative Court of Zurich had
carefully studied Mr Kraska's application for an authorisation. Once
the matter was brought before the Federal Court, the judges assigned
to sit in the case all had access to the file of the cantonal
proceedings and the rapporteur communicated to them his opinion a few
days before the deliberations. They were also able, in principle, to
consult their own court's file and in particular the appeal memorial.
However, one of them, Judge Y, complained, at the public deliberations
on 22 October 1987, that he had received it only the previous day and
that he had been able to read thoroughly only half of the memorial,
which was moreover much too long in his view (see paragraphs 13 and 16
above). Mr Kraska's lawyer was left with the impression that the judge
did not have sufficient knowledge of the case.
32. The Court has already stressed on numerous occasions the
importance of appearances in the administration of justice, but it has
at the same time made clear that the standpoint of the persons
concerned is not in itself decisive. The misgivings of the individuals
before the courts, for instance with regard to the fairness of the
proceedings, must in addition be capable of being held to be
objectively justified (see, among other authorities, mutatis mutandis,
the Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154,
p. 21, para. 48).
In the present case Judge Y took an active part in the
deliberations; he went so far as to propose a solution contrary to that
recommended by the rapporteur and showed that he was familiar with the
case. Ultimately the Federal Court adopted neither of these two
opinions; it chose a third possibility, put forward by one of the other
three judges (see paragraphs 13-14 above). All things considered,
there is no evidence to suggest that its members failed to examine the
appeal with due care before taking their decision. One fact, to which
the Government rightly drew attention, appears significant in this
respect: neither Judge Y, nor any of his four colleagues, requested the
adjournment of the deliberations, although they could have done so, in
accordance with the practice of the Federal Court, if they had felt the
need to acquaint themselves further with the file.
33. In the light of all of these circumstances, Mr Kraska's
complaint does not prove to be well-founded. Even though Judge Y's
comment is open to criticism, the manner in which the Federal Court
dealt with the case does not give rise to any reasonable misgivings.
34. There has therefore been no violation of Article 6 para. 1
(art. 6-1).
FOR THESE REASONS, THE COURT
1. Holds unanimously that Article 6 para. 1 (art. 6-1) applies
in this case;
2. Holds by six votes to three that there has been no violation
of that provision.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 19 April 1993.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the following
separate opinions are annexed to this judgment:
(a) joint dissenting opinion of Mr Ryssdal, Mrs Palm and
Mr Pekkanen;
(b) concurring opinion of Mr Matscher;
(c) concurring opinion of Mr De Meyer.
Initialled: R. R.
Initialled: M.-A. E.
JOINT DISSENTING OPINION OF JUDGES RYSSDAL, PALM AND PEKKANEN
1. According to Article 6 para. 1 (art. 6-1) of the Convention
everyone is entitled to a fair trial by an impartial tribunal. The
right to a fair hearing includes, inter alia, the right for the parties
to the proceedings to submit to the court observations which they
regard as relevant to their case. This right is, however, effective
only if the submissions made to the court are also duly considered by
the court.
2. The Court has on many occasions stressed the importance of
appearances in the administration of justice. The courts in a
democratic society must inspire confidence in the public and, above
all, in the parties to the proceedings. The perceptions of the persons
involved in the proceedings are important, but not decisive; any doubts
as to the unfairness of the hearing must also be objectively justified
(see, among others, mutatis mutandis, the Hauschildt v. Denmark
judgment of 24 May 1989, Series A no. 154, p. 21, para. 48).
3. According to a summary made by the Federal Court on
14 March 1988, one of the judges of that court expressed
dissatisfaction during the public deliberations of the case on
22 October 1987 that the documents had not been available for a long
enough period of time; he had therefore been able to read thoroughly
only the first thirty-five pages of the over-lengthy public-law appeal
statement which comprised seventy-three pages (see paragraph 16 of the
Court's judgment). After this statement the judge proceeded to take
part in the deliberations and decision on the appeal.
In a letter to his client describing the deliberations of the
Federal Court, Mr Kraska's lawyer indicated that he had misgivings as
to the fairness of the hearing since the judge in question had called
for the dismissal of the appeal without having had the possibility to
study the file which he had received only a day before (see
paragraph 13 of the Court's judgment).
4. From these facts we can only draw the same conclusion as the
Commission that the judge in question gave the impression by his
remarks that he wanted to read the entire public-law appeal statement,
but had not been able to do so, although he regarded the document as
being pertinent to the case. Mr Kraska had been able to make his
submissions to the court, but there was a doubt as to whether his
observations had been given proper consideration by one member of the
court. Since these misgivings were based on the admission of the judge
himself no other objective justification is in our opinion necessary.
In our view the decisive fact in this case is the
above-mentioned statement of the judge in question and the impression
which it made on the parties as to the fairness of the hearing.
5. For these reasons we are of the opinion that there has been
a violation of Article 6 para. 1 (art. 6-1) of the Convention with
regard to Mr Kraska's right to a fair hearing.
CONCURRING OPINION OF JUDGE MATSCHER
(Translation)
While I agree with the conclusions of the majority concerning
the finding of no violation of Article 6 para. 1 (art. 6-1), I wish to
reaffirm my view (which I expressed in my dissenting opinions in the
cases of König v. Germany, Series A no. 27, p. 45; Le Compte, Van
Leuven and De Meyere v. Belgium, Series A no. 43, p. 34; and Albert and
Le Compte v. Belgium, Series A no. 58, p. 26), that proceedings
relating to the practice of medicine - or indeed the practice of any
other profession governed by public law - are not proceedings
concerning a civil right, as their outcome has only an indirect bearing
on such a right, in this case the right to conclude (private law)
contracts for medical treatment.
I recognise that it is also important for an individual to
enjoy certain procedural guarantees in his relations with the
administrative authorities, but this should be the subject of specific
rules in the Convention, as Article 6 (art. 6), which was intended to
apply to civil (and criminal) cases, constitutes a somewhat
inappropriate basis for such protection.
If I did not vote against finding Article 6 para. 1 (art. 6-1)
applicable, it was purely out of respect for the well-established
case-law of the Court.
CONCURRING OPINION OF JUDGE DE MEYER
(Translation)
I. The right to engage in a professional activity must
undoubtedly be regarded as a "civil right" within the meaning of
Article 6 para. 1 (art. 6-1) of the Convention.
In this connection it matters little that the status of the
profession in question in this case "has features [in Switzerland]
which are undeniably of a public-law nature" or that "the applicant
wished to work in the private sector, on the basis of contracts
concluded between him and his patients"(1).
The nature of the right in question would not have been any
different if the applicant had wished to practise medicine on another
"basis" or in the "public sector". Nor would it have been if the
status of the medical profession did not embrace "public-law
features"(2).
II. Similarly, the Court did not have to ask itself, yet again,
whether it was "a right which could be said, on arguable grounds, to
be recognised under domestic law" and whether the dispute "was genuine
and of a serious nature"(3).
In the first place, it is not for us, but for the national
courts to resolve questions of this type(4). Secondly, the fact that
a right does not seem to be recognised under the domestic legislation
of a State cannot remove the latter's obligation, in respect of this
right, to ensure that the principles laid down in Article 6 para. 1
(art. 6-1) are applied(5).
III. The right to a fair trial is so important that "there can be
no justification for interpreting Article 6 para. 1 (art. 6-1) of the
Convention restrictively"(6).
The effective enjoyment of this right must be secured each
time that the determination of a right is in issue. That was the case
in this instance; it was sufficient to note that this was so.
As regards the rest, I should like to be permitted to refer,
mutatis mutandis, to what I said in this connection in my separate
opinion in the cases of Pudas v. Sweden(7), H v. Belgium(8) and
Allan Jacobsson v. Sweden(9).
I would simply add that what I was "inclined to think" in
November 1987(10) as regards the "civil" character, within the meaning
of the above-mentioned Article (art. 6-1), of rights and obligations
has since become a profound conviction. All the rights and obligations
which are not related more specifically to the determination of a
"criminal charge" should be regarded as "civil rights".
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(1) Paragragh 25 of the judgment.
(2) It is interesting to note that, in a recent case, the Court would
seem to have begun to accept that, at least in the pensions field, the
legal position of "public sector" employees is the same as that of
"private sector" employees: judgment of 26 November 1992,
Giancarlo Lombardo v. Italy, Series A no. 249-C, p. 42, para. 16.
(3) Paragraph 24 of the judgment.
(4) See in this connection my separate opinion annexed to the Allan
Jacobsson v. Sweden judgment of 25 October 1989, Series A no. 163,
p. 24.
(5) See on this point the concurring opinion of Mr Lagergren, annexed
to the Ashingdane v. the United Kingdom judgment of 28 May 1985,
Series A no. 93, p. 27, and his separate opinion, approved by
Mr Macdonald, annexed to the Lithgow and Others v. the United Kingdom
judgment of 8 July 1986, Series A no. 102, p. 80, together with the
joint separate opinion of Mr Lagergren, Mr Pinheiro Farinha,
Mr Pettiti, Mr Macdonald, Mr Valticos and myself, annexed to the W. v.
the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 39.
(6) Judgment of 13 October 1990, Moreira de Azevedo v. Portugal, Series
A no. 189, p. 16, para. 66.
(7) Judgment of 27 October 1987, Series A no. 125, p. 21.
(8) Judgment of 30 November 1987, Series A no. 127-B, pp. 48-49.
(9) Judgment of 25 October 1989, cited above, loc. cit.
(10) Judgment of 30 November 1987, cited above, p. 49, para. 4.
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