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You are here: BAILII >> Databases >> European Court of Human Rights >> DEBLED v. BELGIUM - 13839/88 [1994] ECHR 28 (22 September 1994)
URL: http://www.bailii.org/eu/cases/ECHR/1994/28.html
Cite as: 19 EHRR 506, (1995) 19 EHRR 506, [1994] ECHR 28
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In the case of Debled v. Belgium*,
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 R. Bernhardt,
Mr Thór Vilhjálmsson,
Mr F. Matscher,
Mr C. Russo,
Mr J. De Meyer,
Mr N. Valticos,
Mrs E. Palm,
Sir John Freeland,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 23 February and
23 August 1994,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
* Note by the Registrar. The case is numbered 17/1993/412/491. 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.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 13 April 1993, 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. 13839/88) against the Kingdom of Belgium lodged with
the Commission under Article 25 (art. 25) by a Belgian national,
Dr Georges Debled, on 17 November 1988.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Belgium recognised
the compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request 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 (art. 6) 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 J. De Meyer, the elected judge of Belgian nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 23 April 1993, in the presence of the
Registrar, the President drew by lot the names of the other seven
members, namely Mr R. Bernhardt, Mr Thór Vilhjálmsson, Mr F. Matscher,
Mr C. Russo, Mr N. Valticos, Mr F. Bigi and Sir John Freeland
(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
Mrs E. Palm, substitute judge, subsequently replaced Mr Bigi, who was
unable to take part in the further consideration of the case (Rules 22
para. 1 and 24 para. 1).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the Belgian
Government ("the Government"), the applicant's lawyer and the Delegate
of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,
the Registrar received the applicant's memorial on 15 November 1993 and
the Government's memorial on 16 November. On 24 November the Secretary
to the Commission informed the Registrar that the Delegate would submit
his observations at the hearing.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
21 February 1994. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr J. Lathouwers, Deputy Adviser,
Head of the Human Rights Department, Delegate
Ministry of Justice, of the Agent,
Mr J.-M. Nelissen-Grade, avocat at the
Court of Cassation, Counsel;
(b) for the Commission
Mr S. Trechsel, Delegate;
(c) for the applicant
Mr M. Spandre, avocat,
Mr M. Graindorge, avocat, Counsel.
The Court heard addresses by Mr Nelissen-Grade, Mr Trechsel,
Mr Spandre and Mr Graindorge.
AS TO THE FACTS
I. The circumstances of the case
A. Proceedings before the Brabant Provincial Council of the Ordre
des médecins
6. Dr Georges Debled, a urologist of Belgian nationality, lives
and practises in Paris.
7. On 10 September 1982, 5 November 1982, 17 March 1983 and
13 August 1984, at a time when the applicant was still practising in
Belgium, patients of his complained to the Brabant Ordre des médecins
(medical association) that the fees he charged were excessive. After
considering these complaints, the Provincial Council summoned the
applicant to appear before it on 5 March 1985. The council's
registered letter of 11 February 1985 also informed him that he would
be heard on the following counts:
"1° that on numerous occasions in recent years, despite the
council's warnings, recommendations and cautions, he charged
his patients excessive fees, and persisted in doing so, in
breach of the principles of moderation and discretion
incumbent on medical practitioners ...
2° that, after various complaints from patients regarding
excessive fees, he refused to follow the recommendation of the
council's fees disputes committee that the cases be submitted
to it;
3° that, through his attitude, he showed total contempt for
the council's warnings, demonstrating by his statements that
he was guided in his practice of medicine by concerns of a
wholly pecuniary nature;
4° that without valid reason he failed to take part in the
[council's] elections of March 1982."
8. At the request of the applicant's lawyer, the hearing was
postponed to 2 April 1985.
9. In pleadings filed on the day of the hearing, Dr Debled,
referring inter alia to certain provisions of the Judicial Code and of
the Royal Decree of 29 May 1970, challenged, by way of main submission,
"the council as a whole" and, in the alternative, five doctors sitting
on the council, on the ground that, even before the hearing, they had
"individually expressed their opinion concerning Dr Debled's conduct
and had described it in negative terms". He also reserved the right
to contest both the admissibility of the case brought against him and
its merits. In additional submissions made at the hearing he requested
that "the proceedings be stayed ... until the appeal [he] intend[ed]
to lodge against the council's decision had been heard". Finally, he
refused to present argument on the merits, despite having been invited
to do so by the council, and withdrew from the hearing.
10. The council gave its decision on 2 April 1985. It first held
that the legislative provisions relied on by the applicant had no
bearing on the facts of the case and therefore could not constitute the
basis for his application challenging its members. It then noted that
none of the members of the Ordre whom he had accused of having a
"negative attitude towards him" sat on the council to which it fell to
determine the disciplinary proceedings. Lastly, it pointed out that
four of the council members whom the applicant had challenged had not
heard the case in question and that the fifth had only been present in
an advisory capacity and had not taken part in the deliberations. It
accordingly dismissed the application challenging the council en bloc
and ruled that the application concerning the five medical
practitioners was inadmissible and ill-founded.
The council gave its decision on the request for a stay of the
proceedings in the following terms:
"... quite apart from the inappropriate references to
legislation which has no bearing on the case..., [the
additional] submissions state in a curiously implausible and
contradictory manner that 'by refusing to give a decision on
the challenges, the council dismissed them';
... at no time did the council refuse to give a decision on
the challenges; ... it merely informed Dr Debled and his
lawyers that it would rule on the challenges and the merits in
a single decision; ... during the hearing it did not take any
decision whatsoever on the challenges and ... Dr Debled was
consequently acting precipitately and in a way which prejudged
a decision that had not been taken when he stated that he
intended to appeal against that decision and requested that
the proceedings be stayed pending the outcome of that
hypothetical appeal.
... there is no reason to grant that request."
With regard to the merits of the case, the council, giving its
decision in absentia, considered that most of the charges against
Dr Debled had been substantiated and imposed "on [him] the penalty of
one year's suspension of his right to practise medicine".
B. Proceedings before the Appeals Board of the Ordre des médecins
1. The appeal
11. On 11 April 1985 Dr Debled lodged an appeal against the
decision of 2 April 1985 with the French-language Appeals Board of the
Ordre des médecins.
12. On 2 October 1986 he was summoned to a hearing to be held on
20 October. On that date he requested a three-month adjournment to
enable his new lawyers to prepare his defence. After deliberating, the
Appeals Board apparently allowed him an adjournment until
4 November 1986.
On 21 October 1986 he laid a complaint for falsification and
use of falsified documents against the members of the bureau of the
council of the Ordre des médecins (Dr Remion, Dr Govaerts, Dr Roose,
Dr Farber and Dr Brihaye). He disputed certain entries in the minutes
of meetings held on 14 June 1983 and 9 October 1984 to consider the
complaints against him. He subsequently also lodged the following
complaints:
- on 31 October 1986 against Mrs Beaupain and Mrs Couturier,
the judges (magistrats) who had sat on the bureau and council
of the Ordre during those meetings;
- on 14 November 1986 against Dr Farber, the vice-president of
the Ordre des médecins, concerning statements made to the
press on 5 November 1986;
- on 25 November 1986 against the same person for making
misleading statements and for breach of confidentiality.
No information has been provided as to what action was taken
in response to those complaints.
2. The application for a transfer of jurisdiction on the
ground of bias
13. In the meantime, on 3 November 1986 Dr Debled applied to the
Court of Cassation for a transfer of jurisdiction, claiming that there
were reasonable grounds for suspecting the Appeals Board of bias
(suspicion légitime). He called into question the impartiality of two
of the five full members, Dr Raickman and Dr Vossen, and three of the
five substitute members, Dr Beernaerts, Dr Daxhelet and Dr Gelin, who
were or had been officials of the medical unions.
He first alleged "in general terms" that the medical unions had
gradually taken control of the various institutions of the Ordre des
médecins with the result that the policy pursued by the association in
fact simply reflected the unions' policies, which were designed purely
to safeguard the interests of union members. Consequently, those who
opposed this policy through the way in which they practised and the
opinions they expressed had good reason to fear that, when hearing a
case that concerned them, the union members would not show the
impartiality to which everyone was entitled. He maintained, in
addition, that the members of the Appeals Board bore a grudge against
him personally because of the views he had expressed. In 1981 he had
denounced the collusion between the Ordre des médecins and the unions
and he had joined the "call of the 300" medical practitioners angered
by the Ordre's backing of a health care strike organised by the unions.
Lastly, he pointed out that the capacity of the disciplinary bodies of
the Ordre des médecins to conduct proceedings in an objective and
impartial manner had been questioned on many occasions by the press,
among others, especially in so far as it was possible to be a member
of those bodies and a member of the unions' organs at the same time.
14. In a judgment of 21 May 1987 the Court of Cassation ruled
inadmissible the application for a transfer of jurisdiction. It held
that Article 12 para. 1 of the Royal Decree of 10 November 1967 on the
Ordre des médecins (see paragraph 22 below) had set up only one
French-language Appeals Board and that therefore, as a matter of law,
it would be impossible to transfer jurisdiction to another
French-speaking Appeals Board. Removing the case from the board
without remitting it to another tribunal would, moreover, be tantamount
to a denial of justice.
3. The Appeals Board's decision of 29 September 1987
15. On 29 September 1987 the Appeals Board gave its decision in
absentia since Dr Debled had not made any further appearances before
it after the hearing of 20 October 1986 (see paragraph 12 above). It
annulled the decision of 2 April 1985, on the ground that six doctors
who had conducted the preliminary investigation had taken part in the
deliberations, and suspended Dr Debled's right to practise medicine for
three months. At the same time it dismissed the applications
challenging the council members and requesting a deferral of the
proceedings, finding that "in his appeal Dr Debled [had] failed to
establish that [his] applications were well-founded as to either the
law or the facts".
4. The application calling upon the Appeals Board to set
aside its decision
16. On 20 October 1987 Dr Debled asked the Appeals Board to set
aside its decision of 29 September 1987 pursuant to Article 34 of the
Royal Decree of 6 February 1970 (see paragraph 25 below). He alleged,
inter alia, that Royal Decree no. 79 on the Ordre des médecins (see
paragraph 22 below) and Royal Decree no. 78 on the medical profession,
the practice of related professions and the medical committees were
manifestly unlawful because certain essential procedural requirements
had not been complied with prior to their adoption. In his submissions
he requested the Appeals Board to rule as follows:
"Primarily
Declare that the Appeals Board does not legally exist or, at
least, that it is unlawfully constituted, and that the same
applies to the Brabant Provincial Council of the Ordre des
médecins, and accordingly hold that the measure ordered by the
Provincial Council against the applicant was unlawful;
discontinue the proceedings brought against the applicant or,
at least, stay the proceedings until another joint,
French-language Appeals Board has been formed in accordance
with the Act of 25 July 1938 and more particularly section 11
of that Act.
In the alternative
Stay its proceedings on account of the various complaints
laid by the applicant, together with applications to join the
proceedings as a civil party filed by him, until the relevant
criminal proceedings are concluded, in accordance with the
principle that criminal proceedings take precedence over civil
proceedings.
In the further alternative
Find that the Appeals Board, which annulled the decision
appealed against, could under no circumstances rely on any of
the documents produced before the Provincial Council because
those documents were inadmissible.
In the even further alternative
... dismiss all the charges and complaints brought against
the applicant."
5. The Appeals Board's decision of 15 March 1988
17. On 12 November 1987 Dr Debled was summoned to appear before the
Appeals Board on 19 January 1988. At the hearing he immediately
challenged Dr Cattiez, Dr Andri and Dr Raickman. He alleged that they
were influential members of the medical unions, which he had
consistently opposed - in particular by denouncing the collusion
between the Ordre and the unions and by taking part in the "call of
the 300". He likewise challenged Judge Thiry on the ground that his
son was one of the medical unions' lawyers. After hearing Dr Debled,
the Appeals Board withdrew to deliberate. It then decided to adjourn
the proceedings until 2 February 1988 in order to enable it to
"reconstitute a full board" in the meantime.
18. At the hearing on 2 February 1988 Dr Debled filed a further
application challenging Mr Thiry. In addition, he challenged
Dr Fagnart and Dr Lange, in the latter's case on the ground that his
son was a member of the medical union of the provinces of Liège and
Luxembourg. He declared, furthermore, that he intended to persist with
the applications he had filed at the hearing on 19 January. After
hearing Dr Debled, the Appeals Board decided to join the interlocutory
proceedings to the merits, whereupon the applicant asked that the
record should state that he reserved his position concerning both the
failure to take an immediate decision on the challenges and their
joinder to the merits.
19. On 15 March 1988, at a public hearing, the Appeals Board
dismissed the objection based on the alleged unlawfulness of Royal
Decrees nos. 78 and 79 and ruled that the application of
20 October 1987 requesting it to set aside its earlier decision was
ill-founded (see paragraph 16 above). It noted that the Provincial
Council's decision of 2 April 1985 (see paragraph 10 above) had been
annulled and confirmed the decision of 29 September 1987 (see
paragraph 15 above) suspending Dr Debled's right to practise medicine
for three months. On the subject of the challenges, it ruled as
follows:
"... the president informed each of the challenged members
of the existence of a challenge and submitted their individual
cases to the board, which in each case took a majority vote on
the challenge without the member concerned being present, but
after hearing that member;
... with regard to the challenges against Dr Fagnart and
Dr Lange, the board notes that the applications are neither
dated nor signed; they are thus flawed and hence inadmissible;
... with regard to the challenges against Dr Cattiez,
Dr Andri and Dr Raickman and the challenges concerning Judge
Thiry, the board notes that they are all based on
Article 828, 11°, of the Judicial Code and that the documents
produced by Dr Debled do not reveal the slightest trace of any
hostility, even less of fundamental hostility; those
challenges are accordingly completely unfounded."
C. Proceedings in the Court of Cassation
20. On 18 April 1988 Dr Debled appealed on points of law against
the decision of 15 March 1988. Two of his five grounds were based on
Article 6 para. 1 (art. 6-1) of the Convention and the general
principle of law that a judge must be impartial.
In his first submission he also alleged a breach of Article 43
of the Royal Decree of 6 February 1970 governing the organisation and
functioning of the councils of the Ordre des médecins and of Articles 2
and 837 of the Judicial Code (see paragraphs 25 and 26 below).
Firstly, there was no legal justification for the decision to join the
challenges to the merits and, secondly, those members whose
impartiality had been called into question could not take part in a
decision to postpone a ruling on the applications concerning them
without engendering reasonable doubts as to the impartiality of the
tribunal required to determine the merits of the challenges and of the
charges.
In his second submission Dr Debled complained of the fact that
the challenges against Dr Cattiez, Dr Andri, Dr Raickman and Judge
Thiry had been considered ill-founded "admittedly without the
challenged member being present, but each time in the presence of the
other challenged members, whereas the grounds for the challenges [were]
identical".
21. In a judgment of 13 April 1989 the Court of Cassation dismissed
the appeal. It observed, in particular, that:
" ... since the members of the Board who had been challenged
did not take part in the decision on the individual challenges
concerning them, the mere fact that they participated in the
decisions on the other challenges, made on the basis of the
grounds reproduced in the appeal submission, does not
constitute a breach of either the legislation or the general
principle of law referred to by the appellant."
II. Relevant domestic law
A. Royal Decree no. 79 of 10 November 1967 relating to the Ordre
des médecins
22. The Ordre des médecins is currently governed by Royal
Decree no. 79 of 10 November 1967, issued pursuant to an Act of
31 March 1967 "investing the King with certain powers with a view to
ensuring economic revival, acceleration of regional reconversion and
a stable, balanced budget".
That decree provides in particular:
Article 12
"1. The French-language Appeals Board and the
Dutch-language Appeals Board shall each be composed of:
1° five full members and five substitute members, who are
medical practitioners, elected for six years and entitled to
stand for re-election. Each Provincial Council shall elect
one of the five members of the Appeals Board corresponding to
the language it uses. The member shall be elected from among
the practitioners of Belgian nationality who have been on the
council's register for at least one year when the election is
held ...
2° five full members and five substitute members, who are
conseillers (judges) at the Court of Appeal, appointed by the
King for six years;
...
2. The King shall designate the president and rapporteurs
of each board from among the judicial members.
..."
Article 25
"...
4. The Appeals Boards shall take cognisance of all
aspects of a case, even where only the medical practitioner
has appealed.
The Appeals Board must have a two-thirds majority to impose
a penalty where the Provincial Council did not so decide or to
impose a more severe penalty than that decided by the
council."
B. The Royal Decree of 6 February 1970 governing the organisation
and functioning of the councils of the Ordre des médecins
23. In accordance with Royal Decree no. 79, the Royal Decree of
6 February 1970, as amended on 9 August 1971 and 3 December 1979,
governs the organisation and functioning of the councils of the Ordre.
24. The councils, which are responsible for "ensuring observance
of the rules of medical ethics and upholding the reputation, standards
of discretion, probity and dignity of the members of the Ordre", are
required to "discipline misconduct by registered members in or in
connection with the practice of their profession and serious misconduct
committed outside the realm of their professional activity, whenever
such misconduct is liable to damage the reputation or dignity of the
profession" (Article 6, 2°, of Royal Decree no. 79).
In addition to a warning, censure or reprimand, the councils
are empowered to suspend the right to practise medicine for a period
not exceeding two years or to strike the practitioner in question off
the register of the Ordre (Article 16).
25. The following provisions are relevant to the instant case:
Article 12
"The Appeals Boards' deliberations and decisions shall be
valid only if, in addition to the registrar, at least three
elected members and three designated members are present.
Without prejudice to the application of the provisions of
Article 32 of this decree, the Appeals Boards' decisions shall
be taken by a majority vote."
Article 34
"An application to the Appeals Board to set aside its own
decision given in absentia shall be filed by registered letter
addressed to the president of the Appeals Board concerned."
Article 40
"A medical practitioner may avail himself of his right to
challenge the members of the Provincial Council and Appeals
Board required to give a decision concerning him."
Article 41
"Any member of the Provincial Council or Appeals Board may
be challenged for the reasons laid down in Article 828 of the
Judicial Code."
Article 42
"If he is not to forfeit his right to challenge the members
of the council or board, the medical practitioner must, at the
latest before the case is pleaded at the hearing, submit to
the president of the competent council or board an
application, which must be dated and signed and which shall
set out the names of the challenged members and the grounds
for the challenge."
Article 43
"The president of the council or board shall immediately
inform the member at whom the challenge is directed; he shall
submit the challenge to the council or board, which shall take
a majority vote on it, after hearing the challenged member but
without that member being present.
The reasoned decision shall be served on the medical
practitioner without delay.
An appeal shall lie against a decision by the Provincial
Council dismissing a challenge; such an appeal must be lodged
within eight days of the notification of the decision."
C. The Judicial Code
26. The relevant provisions of the Judicial Code read as follows:
Article 2
"The rules set out in this Code shall apply to all
proceedings except those governed by legislation that has not
been expressly repealed or by principles of law whose
application is incompatible with that of the provisions of the
Code."
Article 828
"Any judge may be challenged for the following reasons:
...
7° if the judge is the guardian (tuteur), auxiliary guardian
(subrogé tuteur) or limited guardian (curateur), temporary
trustee (administrateur provisoire) or guardian ad litem
(conseil judiciaire) ... of one of the parties; if he is an
administrator or agent (commissaire) of any establishment,
company or association which is a party to the case; ...
...
11° if there is fundamental hostility (inimitié capitale)
between him and one of the parties; if he has made attacks,
proffered insults or uttered threats, in speech or in writing,
since the commencement of the proceedings or in the six months
preceding the challenge."
Article 837
"From the day on which the judge is notified, all judgments
and proceedings shall be suspended.
Nevertheless, if one of the parties maintains that the
proceedings are urgent and that the delay involves a risk,
that party may request the president of the relevant court to
organise a hearing of the interlocutory application; ...
In allowing that request, the president shall order that
another judge should deal with the application."
27. According to Belgian legal theory, "fundamental hostility
exists if facts of a sufficiently serious nature clearly reveal that
the judge feels real hatred or at least animosity such that his
judgment is destroyed or impaired" (Fettweis, Manuel de procédure
civile, 1987, p. 429, note 1).
PROCEEDINGS BEFORE THE COMMISSION
28. Dr Debled's application (no. 13839/88) was lodged with the
Commission on 17 November 1988. He alleged a breach of the right to
an impartial tribunal and a fair trial, as guaranteed by Article 6
para. 1 (art. 6-1) of the Convention.
29. On 3 September 1991 the Commission declared admissible the
complaint based on the lack of impartiality of the Appeals Board of the
Ordre des médecins when it examined the challenges. It considered that
the other complaints were inadmissible. In its report of
16 February 1993 (Article 31) (art. 31) it expressed the unanimous
opinion that there had not been a violation of Article 6 para. 1
(art. 6-1). The full text of the Commission's opinion 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 292-B of Series
A of the Publications of the Court), but a copy of the Commission's
report is obtainable from the registry.
_______________
GOVERNMENT'S FINAL SUBMISSIONS TO THE COURT
30. In their memorial the Government requested the Court
"to hold that the facts of the present case disclose no
violation by the Belgian State of Article 6 para. 1 (art. 6-1)
of the European Convention on Human Rights and consequently
rule that there are no grounds for awarding just
satisfaction".
AS TO THE LAW
THE ALLEGED BREACHES OF ARTICLE 6 PARA. 1 (art. 6-1)
31. Dr Debled complained that his case had not been heard by "an
independent and impartial tribunal established by law" within the
meaning of Article 6 para. 1 (art. 6-1) of the Convention, which
provides:
"In the determination of his civil rights and obligations
..., everyone is entitled to a ... hearing ... by an
independent and impartial tribunal established by law ..."
He criticised especially the way in which the Appeals Board of
the Ordre des médecins had examined the challenges lodged against four
of its members.
A. Tribunal established by law
32. Before the Court the applicant argued that the disciplinary
bodies of the Ordre did not constitute tribunals "established by law".
Royal Decrees nos. 78 and 79, under which provision was made for those
bodies, were falsified public documents. They had been adopted under
a procedure which had been flawed by numerous defects, in particular
as regards the formalities completed between the submission of the
draft decrees to the Conseil d'Etat for its opinion and their
publication in the Moniteur belge. Responsibility for this lay with
the medical unions; they had brought pressure to bear on ministers with
a view to ensuring that the disciplinary bodies set up would be
completely won over to their cause.
33. This is a new complaint that was not raised before the
Commission, whose decision on admissibility determines the scope of the
Court's jurisdiction. The Court therefore has no jurisdiction to
entertain it (see, mutatis mutandis, the Olsson v. Sweden (no. 2)
judgment of 27 November 1992, Series A no. 250, pp. 30-31, para. 75).
B. Independent and impartial tribunal
34. As his second submission, Dr Debled maintained that the Appeals
Board lacked the independence and impartiality required under
Article 6 para. 1 (art. 6-1).
Firstly, the disciplinary bodies of the Ordre des médecins, in
general, and the Appeals Board, in particular, were mere offshoots of
the medical unions. Union members, who accounted for only 15% of the
registered voters, managed to secure the election of their candidates
to the Provincial Councils by uniting their votes. This enabled
them to take control of the Appeals Board through the application of
Article 12 of Royal Decree no. 79. In addition, deliberations and
voting were so organised within the Appeals Board (Article 25 para. 4,
sub-paragraph 2, of the decree) as to make it very easy for the unions
to have disciplinary measures imposed on an "opponent", such as the
applicant. Furthermore, the fact that there was no tribunal to which
jurisdiction could be transferred in the event of a challenge to the
members of the Appeals Board en bloc compounded the lack of
independence of the contested system.
Secondly, Judge Thiry together with a number of officials of
the medical unions had founded the Société belge d'éthique et de morale
médicale (Belgian society for medical ethics and morals) funded by the
unions and the Ordre des médecins. Mr Thiry was its Vice-Chairman.
In addition, his son was the only lawyer recommended by the unions.
The doctors whom the applicant had challenged had all had a personal
interest in the outcome of the case because they embraced "the concept
of medicine as an industry, which is very costly for the health and
invalidity insurance schemes" and showed "complete contempt for the
medical practitioner's social role" (see paragraphs 17 and 18 above).
35. The Government and the Delegate of the Commission pointed out
that the complaints challenging the independence of the Appeals Board
were first raised before the Court and therefore fell outside the scope
of its jurisdiction. Those relating to the Board's impartiality were,
they considered, wholly unfounded.
36. The Court finds it unnecessary in this case to examine the
issues of independence and impartiality separately.
On the question of objective or structural impartiality, the
Court has already had occasion to examine some of the complaints made
by the applicant in relation to the Appeals Board's independence. In
the Albert and Le Compte v. Belgium judgment of 10 February 1983
(Series A no. 58, pp. 17-18, para. 32) it held that "the manner of
appointment of the medical practitioners sitting on the Appeals
[Boards] provides no cause for treating those individuals as biased;
although elected by the Provincial Councils ... , they act not as
representatives of the Ordre des médecins but - like the judicial
members nominated by the Crown - in a personal capacity".
That finding is in no way undermined by the applicant's
submissions relating to Article 25 para. 4, sub-paragraph 2, of Royal
Decree no. 79 and to the lack of a tribunal to which jurisdiction could
be transferred. Firstly, the purpose of the above-mentioned provision
is plainly only to make it difficult to impose a more severe
disciplinary penalty on appeal, and secondly the fact that there is no
tribunal to which jurisdiction could be transferred does not suffice
to establish the Appeals Board's lack of impartiality or independence.
37. The only question which remains to be answered is whether the
challenges against four members of the Appeals Board of the Ordre des
médecins were examined in a manner compatible with Article 6 (art. 6)
of the Convention since each of the challenged members took part in the
decision concerning his colleagues (see paragraph 19 above). This
could affect the personal impartiality of each of the challenged
members of the Board, which must, however, be presumed until there is
proof to the contrary (see the Albert and Le Compte judgment previously
cited, pp. 17-18, para. 32).
The participation of judges in a decision concerning challenges
against one of their colleagues can pose problems if identical
challenges have been directed against them. But the special
circumstances of the present case must be taken into account.
Dr Debled had challenged several members of the Appeals Board; their
exclusion from all the decisions concerning those challenges would have
paralysed the whole disciplinary system. He based each of his
complaints concerning the challenged members on almost identical
grounds, which were general and abstract in nature and were inferred
from their membership of the medical unions or their alleged
connections with the unions. No reference was made to specific,
material facts that could have revealed personal animosity or hostility
towards him. Such vague objections cannot be regarded as well-founded
(ibid., pp. 17-18, para. 32).
38. Accordingly, there has been no breach of Article 6 para. 1
(art. 6-1).
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no breach of Article 6 para. 1
(art. 6-1).
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 22 September 1994.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Acting Registrar