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SOSINOWSKA v. POLAND - 10247/09 [2011] ECHR 1719 (18 October 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1719.html
Cite as:
[2011] ECHR 1719
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FOURTH
SECTION
CASE OF SOSINOWSKA v. POLAND
(Application
no. 10247/09)
JUDGMENT
STRASBOURG
18 October
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Sosinowska v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Päivi
Hirvelä,
Ledi Bianku,
Zdravka
Kalaydjieva,
Nebojša Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 27 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 10247/09) against the
Republic of Poland lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Polish national, Ms
Bożena Sosinowska (“the applicant”), on 14 February
2009.
The
applicant was represented by Mr L. Mrozek, a lawyer practising
in Chorzów. The Polish Government (“the Government”)
were represented by their Agent, Mr J. Wołąsiewicz of
the Ministry of Foreign Affairs.
The applicant alleged that the disciplinary proceedings
against her had been unfair in violation of Article 6 of the
Convention and that there had been an interference with her right to
freedom of expression in breach of Article 10 of the Convention.
On
26 April 2010 the President of the Fourth Section decided to
give notice of the application to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant is a specialist in lung diseases. She had worked since 1992
in a hospital in Ruda Śląska. On an unspecified later date
W.R.K. became chief physician of the ward in which the applicant
worked. A serious conflict arose between them, the applicant
becoming increasingly critical of various decisions taken by W.R.K.
in the diagnosis and treatment of the ward’s patients.
On
16 September 2004 the applicant wrote to Professor J.K. who was
at that time a regional consultant for lung diseases. She submitted
that W.R.K.’s conduct had demonstrated that she [that is,
W.R.K.] lacked appropriate skills to run the ward as her clinical
experience and judgment left much to be desired. The applicant
referred to the cases of seven patients who had been treated in the
ward and indicated shortcomings which she perceived as errors in
their diagnosis and treatment. She stated that W.R.K. had often
behaved in a manner contrary to professional ethics, by questioning
the applicant’s clinical judgment and by denigrating her in the
eyes of patients and the ward’s medical staff. She declared
that she would not have bothered the professor with this problem if
not for the fact that W.R.K. had threatened her with dismissal for
refusing to comply with her orders.
On
5 November 2005 the hospital dismissed the applicant on the
grounds of a serious failure to comply with her duties within the
meaning of Article 52 of the Labour Code.
The
applicant filed a compensation claim for unlawful dismissal with the
Labour Division of the Ruda Śląska District Court.
During
the proceedings the court heard as witnesses W.R.K., E.Ch., who was
at that time the director of the hospital, J.W. - the former Head
Physician of that hospital, two doctors working in the ward M.M. and
Z.L., and H.W., the leader of the trade union branch at the hospital.
It also had regard to the applicant’s employment file and to
the medical records of various patients treated in the ward.
By
a judgment of 22 December 2005 the court allowed the applicant’s
claim and awarded her compensation in the amount of 9,413 Polish
zlotys (PLN) with statutory interest payable from 6 November
2004.
The
court found that the applicant was a very good specialist. It further
established that a serious and long-standing conflict had arisen
between her and W.R.K. On an unspecified date in 2004 the former
chief physician of the hospital, J.W., had decided to intervene in
the conflict, but had subsequently given notice on his contract in
September of that year and had left before doing so. Dr E.Ch. had
taken over his duties. In 2004 she had reviewed the ward patients’
medical records and found no irregularities. On an unspecified date,
apparently also in 2004, the applicant had informed the director of
her doubts as to the correctness of certain diagnostic and
therapeutic decisions made by W.R.K. The applicant had also informed
Dr E.Ch. that she had shown certain patients’ records to
the regional consultant, asking for his opinion. She had handed over
to Dr E.Ch. a copy of her letter to the consultant. Dr E.Ch. had
expressed no objections.
The
court further found that it had been normal practice in the ward that
medical records were kept by the treating doctor. It had not been
established, in the light of the evidence before the court, that the
applicant had made any irregular changes, amendments to or comments
in the records kept by other doctors or had otherwise tampered with
their content.
The
court noted that the evidence given by W.R.K. concerning the
allegations that the applicant had improperly amended the medical
records and refused to follow her orders lacked credibility. It was
not in dispute between the parties that a serious conflict between
the applicant and W.R.K. had made it almost impossible for the ward
to function normally. W.R.K., in her capacity as head physician of
the ward, had proved unable to take any steps to defuse that
conflict. Likewise, the hospital’s medical director, Dr E. Ch.,
had not taken any reasonable steps to address the situation. The
court was of the view that the applicant had been dismissed because
the hospital authorities had considered that her dismissal was simply
the easiest way of getting rid of the problem.
The
court further held that the allegations that the applicant had made
errors and about the alleged irregularities in the manner in which
she had administered the patients’ medical records had not been
confirmed by the evidence. The fact that the applicant, when she had
been in doubt as to the correctness of the medical decisions taken in
respect of some patients, had shown their records to the regional
consultant asking for guidance, did not amount to any irregularity.
Indeed, such conduct was expressly recommended by the Law on the
Profession of Physicians. The applicant’s conduct also had to
be seen in the context of the fact that she could not expect any
assistance, clinical or otherwise, from her superior W.R.K.
The
court observed that it was the superior’s obligation to
organise the work of the ward in such a way as to make full use of
the employees’ professional potential and their time. It was
unethical on the superior’s part to exacerbate a conflict with
a member of staff.
The
court referred to the procedure by which the applicant had been
dismissed, including the consultation with the local branch of the
trade union. It found that the procedure had not complied with the
requirements laid down in the Labour Code.
The
court concluded that the applicant’s dismissal was unjustified
and unlawful as her conduct could not reasonably have been said to
amount to a serious breach of her professional obligations and
awarded her compensation.
The
hospital appealed. By a judgment of 28 June 2006 the Gliwice
Regional Court dismissed the appeal.
By
a letter of 3 November 2004 the applicant requested the Katowice
Regional Medical Chamber to intervene in the conflict between herself
and W.R.K. She submitted, inter alia, that the head physician
had perceived her as a professional threat. As she could not find
genuine reasons to criticise the applicant, she had started to bully
her. Ultimately, she had untruthfully complained to the then director
of the hospital that the applicant had been refusing to comply with
her orders. As a result, the applicant had been dismissed. The
applicant requested that a professional supervision commission be set
up to examine W.R.K.’s working methods. She attached a list of
professional errors which, in the applicant’s view, W.R.K. had
committed and which had come to light during her numerous
confrontations with W.R.K.
By
a decision of 20 January 2005 the Katowice Regional Attorney for
Professional Liability (Okręgowy Rzecznik Odpowiedzialności
Zawodowej – “the Regional Attorney”) refused to
institute an investigation, finding that the applicant had submitted
her request against the background of the conflict with her boss.
The
applicant appealed. She submitted, inter alia, that she was
upset by the arguments advanced by the Regional Attorney that she had
no right to criticise the head physician even when the latter was
acting to the patients’ detriment.
On
31 May 2006 the Principal Attorney for Professional Liability (Główny
Rzecznik Odpowiedzialności Zawodowej)
quashed the decision of 20 January 2005 and remitted the
case.
On
18 August 2006 the Katowice Regional Attorney refused to
institute proceedings following the applicant’s complaint
against W.R.K.
On
22 August 2006 he instituted an investigation against the
applicant based on suspicion of unethical behaviour towards a
colleague and superior. On 13 October 2006 he brought a case
against her before the Katowice Regional Medical Court (“the
Regional Medical Court”) for offences specified by Articles 52
(1), 52 (2), 52 (3) and 1 (3) of the Code of Medical Ethics inter
alia for “openly criticising her superior’s
diagnostic and therapeutic decisions, in the presence of other
colleagues and members of medical and non medical staff”.
The
Regional Medical Court subsequently questioned as witnesses W.R.K.,
E.Ch. and K.K., a director of the hospital.
On
an unspecified later date a copy of the judgment of the Labour Court
(see paragraphs 8 to 17 above) was included in the case file.
On
14 September 2007 the Regional Medical Court found the applicant
guilty of unethical conduct, punishable under Article 52,
paragraphs (1), (2) and (3) of the Code of Medical Ethics as
amended in 2003 and under Article 1 paragraph (3) of that Code. The
conduct was said to consist of: failure to comply with her superior’s
orders (paragraph 1); publicly making disparaging statements
about her superior to the medical staff of the ward (paragraph 2);
informing other doctors about what she perceived to be erroneous
decisions on her superior’s part and taking patients’
medical records out of the hospital to show them to the regional
consultant (paragraph 3); and inability to work in a medical team
(Article 1 paragraph 3 of the Code).
The
court imposed a reprimand (nagana) on the applicant.
The
court found that the applicant had been in conflict with W.R.K.; that
she had openly and persistently expressed negative opinions about
W.R.K.’s qualifications in the presence of other doctors and
medical staff and even in the presence of patients and their
families, which constituted an offence under Article 52 (2) of
the Code of Medical Ethics. The applicant was also found guilty of
refusing to comply with her superior’s orders and of amending
medical records without informing her superior, an offence punishable
under Article 52 (1) of that Code. She was further found to be
in breach of Article 52 (3) by having informed other doctors of
the allegedly erroneous decisions of her superior and by having taken
the medical records out of the ward to show them to the regional
consultant.
The
applicant’s lawyer filed an appeal against the judgment with
the Supreme Medical Court (Naczelny Sąd Lekarski). He
submitted that the court had failed to respect the provisions of the
Code of Criminal Procedure governing the proceedings, by disregarding
the applicant’s request for evidence to be admitted from the
file of the labour case; disregarding the applicant’s requests
that the evidence submitted in her written reply to the charges
brought against her be considered and failing to make a formal
decision refusing to take this evidence; failing to specify the time
and place where the applicant had committed the alleged offences and
by putting leading questions to the witnesses.
It
was further argued that the first-instance court had entirely failed
to take into consideration the findings of fact made by the labour
court.
It
was further submitted that the applicant should not have been
penalised for expressing her views. The court had breached the Code
of Medical Ethics, Article 52 (4) of which provided that informing
the Medical Chamber of a breach of medical ethics committed by
another doctor or about his or her professional incompetence could
not be interpreted as a violation of ethical rules. The applicant had
informed the Medical Chamber in 2004 about W.R.K.’s conduct
which had been, in her view, both unprofessional and unethical. She
had also requested the Chamber’s assistance in defusing the
professional conflict. However, the Chamber had chosen to penalise
her instead.
In
addition, the court had erred in law in that it had failed to show
that the applicant’s conduct had resulted in W.R.K. losing the
confidence of other doctors or patients and their families, this
being necessary for the commission of the offence under Article 52
(2).
31. By
a decision of 13 March 2008, served on the applicant’s lawyer
on 1 September 2008, the Supreme Medical Court dismissed the
appeal. It dismissed the applicant’s argument that the court
had disregarded her request for evidence to be taken. The applicant’s
dismissal from work had been unlawful, but, in the court’s
opinion and contrary to the labour court’s view, it did not
mean that it had not been justified.
As
to the first instance court’s failure to establish the
dates of the acts with which the applicant had been charged, the
second-instance court established that they had occurred between
1 July 2002 and 5 November 2004.
The
court further noted that the first-instance court had been free and
independent in its assessment of the evidence gathered in the
proceedings.
It
further observed that Article 1 (3) of the Code of Medical
Ethics provided that any conduct which undermined confidence in the
profession was in breach of the profession’s dignity. Hence, it
was of no relevance that the applicant had first requested the
Medical Chamber to intervene.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution of the Republic of Poland
Article 54 § 1 of the Polish Constitution which entered into
force on 17 October 1997 guarantees freedom of expression. It
states, in so far as relevant:
“Everyone shall be guaranteed freedom to express
opinions and to acquire and to disseminate information.”
A
right to lodge a constitutional complaint was introduced in
Article 79 § 1 which provides as follows:
“In accordance with principles specified by
statute, everyone whose constitutional freedoms or rights have been
infringed shall have the right to appeal to the Constitutional Court
for its judgment on the conformity to the Constitution of a statute
or another normative act upon which basis a court or organ of public
administration has made a final decision on his freedoms or rights or
on his obligations specified in the Constitution.”
37. Under
its settled case law, the Constitutional
Court has jurisdiction only to examine the compatibility of legal
provisions with the Constitution and is not competent to examine the
way in which courts interpreted applicable legal provisions in
individual cases (e.g. SK 4/99, 19 October 1999; Ts 9/98,
6 April 1998; Ts 56/99, 21 June 1999).
B. Code of Medical Ethics
Article 1
§ 3 of the Code of Medical Ethics (Kodeks Etyki Lekarskiej)
reads:
“Any conduct which undermines trust in the
profession amounts to a breach of professional dignity (godność
zawodu).”
Article
10 of the Code, set out in Chapter I, entitled “Relations
between a physician and his patient” (Postępowanie
lekarza wobec pacjenta) reads, in so far as relevant:
“1. A physician should not exceed the
limits of his or her professional competence when carrying out
diagnosis, prophylaxis and treatment...”
Article
52 of Chapter III of the Code of Medical Ethics, entitled “Mutual
relations between physicians” (Stosunki wzajemne między
lekarzami), originally read:
“1. Physicians must show respect to
each other.
2. A physician should not express an
unfavourable opinion on the professional conduct of another physician
or discredit him in any other way in the presence of a patient, his
or her environment or [in the presence of] assisting staff.
3. All comments on the observed erroneous
conduct of a physician should, in the first place, be passed on to
him or her. Informing a medical court of the observed unethical
behaviour or professional incompetence of another physician does not
undermine the principle of professional solidarity.”
On
20 September 2003 Article 52 § 2 was amended. It reads
as follows:
“A physician should display particular caution in
formulating opinions on the professional conduct of another doctor
and in particular he should not in any way discredit him publicly.”
Pursuant
to Article 54 of the Code, in the event of any diagnostic or
therapeutic doubts, a doctor should, in so far as possible, seek the
opinion of another doctor. Such an opinion shall only be of an
advisory nature as it is the treating doctor who remains entirely
responsible for the therapy and treatment.
C. Law on Medical Chambers
According
to section 19 of the Law of 17 May 1989 on Medical Chambers (Ustawa
o Izbach Lekarskich), as it stood at the material time, a
regional medical chamber included all physicians whose names are
entered on its register. Bodies of a regional medical
chamber included, among others, a regional medical court (okręgowy
sąd lekarski) and a regional attorney for professional
liability (section 20). The Supreme Medical Court (Naczelny
Sąd Lekarski) was a body of the Supreme Medical Chamber
(section 31).
Section
41 of the Law, in Chapter 6, entitled “Professional Liability”
(Odpowiedzialność zawodowa), provided:
“Members of the medical self-government shall be
professionally liable before medical courts for any conduct in breach
of the principles of professional ethics and deontology and for any
breach of the provisions governing the exercise of the medical
profession.”
Section 42
read, in so far as relevant:
“1. The medical court may impose the
following penalties:
1) ensure (upomnienie),
2) reprimand (nagana),
3) suspension from practice (zawieszenie
prawa do wykonywania zawodu) for a period from six months to
three years,
4) revocation of the right to practise
medicine (pozbawienie prawa wykonywania zawodu).
2. A physician, on whom the Supreme Medical
Court sitting at second instance has imposed any penalty referred to
in subsections (3) or (4), has the right to lodge an appeal with the
Supreme Court within 14 days from the date on which the [court’s]
decision has been served on him or her...”
According
to section 46, matters of professional liability of medical
practitioners were examined by regional medical courts and the
Supreme Medical Court.
According
to section 54 the members of the Medical Courts were, in their
adjudicating capacity, independent and should follow the law and the
Code of Medical Ethics. Section 7 provided that the term of
office of all bodies of the medical chambers was four years.
D. Medical Profession Act
Section 37
of the 1996 Medical Profession Act provides that in the event of any
diagnostic or therapeutic doubts, a doctor may, on his or her own
initiative or upon a patient’s request and if he or she finds
it reasonable in the light of the requirements of medical science,
obtain the opinion of a relevant specialist or arrange a consultation
with other doctors.
E. Labour Code
The rights and obligations of employees are governed
by the Labour Code. Pursuant to Article 52 paragraph 1 (1) 3 of
that Code an employer can give notice on an employment contract with
immediate effect in the case of a serious breach by an employee of
his or her essential obligations.
F. The Constitutional Court’s judgment of 23
April 2008
On
23 April 2008 the Constitutional Court delivered a judgment (SK16/07)
in which it found that Article 52 § 2 of the Code of
Medical Ethics was unconstitutional in so far as it prohibited a
truthful public assessment of a doctor’s activity by another
doctor in the public interest. The relevant provision, examined in
its new wording which came into force in 2003, was not quashed by the
Constitutional Court as only its particular interpretation was
considered to breach the constitutional norm securing the freedom of
expression.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
The
applicant complained that the imposition of the penalty on her by the
medical courts had breached her right guaranteed by Article 10
of the Convention. This provision reads as follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent states from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
A. Admissibility
The
Government submitted that the applicant had failed to exhaust
domestic remedies by failing to lodge a constitutional complaint
challenging the compatibility of Article 52 (2) of the Code of
Medical Ethics with the Constitution. They argued that on 23 April
2008 the Constitutional Court had declared unconstitutional an
interpretation of this provision which penalised doctors for making a
truthful public assessment of the conduct of another doctor which was
in the public interest. The relevant provision, examined in its
wording which came into force in 2003, had not been quashed by the
Constitutional Court as only its overly strict interpretation had
been considered to breach the constitutional norms securing the
freedom of expression (see paragraph 49 above).
The
applicant submitted that, firstly, she had been served with a copy of
the second-instance judgment on 2 September 2008, a long time
after the Constitutional Court’s judgment of 23 April
2008.
She
further argued that in any event lodging a constitutional complaint
in her case would have been futile, as by that time the
Constitutional Court had already declared Article 52 (2) of the
Medical Ethics Code to be incompatible with the Constitution. Hence,
the proceedings concerning her constitutional complaint would in any
event have been discontinued by that court as the issue had already
been settled.
The
Court has held
that a constitutional complaint was an effective remedy for the
purposes of Article 35 § 1 of the Convention only in
situations where the alleged violation of the Convention resulted
from the direct application of a legal provision considered by the
complainant to be unconstitutional (see, among other authorities,
Szott-Medyńska
v. Poland (dec.),
no. 47414/99, 9 October 2003;
Pachla v. Poland (dec.),
no 8812/02, 8 November 2005; and Wypych
v. Poland (dec.),
no. 2428/05,
25 October 2005).
54. In
this connection, the Court first notes that by 2 September 2008,
when the second-instance judgment was served on the applicant, the
Constitutional Court had already declared that a strict
interpretation of Article 52 (2) of the Code of Medical Ethics
was incompatible with the Constitution in so far as it
prohibited a truthful public assessment of the conduct of a doctor by
another doctor in the public interest. It was considered to violate
the constitutional norm securing the freedom of expression. The Court
notes that section 39 § 1 of the Constitutional Court
Act stipulates that that court shall discontinue its examination of a
case if the challenged normative act has ceased to have effect prior
to the delivery of a judicial decision by that court. It
is therefore doubtful whether lodging a constitutional complaint at
that time, concerning the same provision, would have served any
useful purpose.
55. In
any event, the Court observes that the breach of the Convention
complained of in the present case cannot be said to have originated
solely from the direct application of the legal provision referred to
by the Government, namely Article 52 (2) of the Code of Medical
Ethics. It notes that there was a four-fold legal basis for the
penalty imposed on the applicant and, apart from paragraph 2, it also
included paragraphs 1 and 3 of that provision which provided for
separate disciplinary offences. The domestic court also referred to
Article 1 (3) of that Code. Hence, the alleged breach resulted
from the
interpretation and application of a number of provisions, and not a
single provision which could be deemed objectionable from a
constitutional point of view and challenged by way of a
constitutional complaint.
Given
the multiplicity of legal bases for the punishment imposed on the
applicant and also bearing in mind that the Polish Constitutional
Court lacks jurisdiction to examine the way in which the provisions
of domestic law have been interpreted and applied in an individual
case (see paragraph 37 above), the Court is of the view that it
has not been shown that a constitutional complaint was, in the
circumstances of the case, an effective remedy to which the applicant
should have had recourse for the purposes of Article 34 of the
Convention (see Bobek v. Poland, no. 68761/01,
§§ 70 73, 17 July 2007; Luboch v. Poland,
no. 37469/05, § 71, 15 January 2008; Bugajny
and Others v. Poland, no. 22531/05, § 45,
6 November 2007).
Consequently,
the Government’s objection as to the exhaustion of domestic
remedies must be rejected.
The
Court notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The Government submitted that the interference
had been prescribed by law, namely by Article 52 of the Code of
Medical Ethics, and that it had pursued the legitimate aim of
protecting the reputation and rights of others.
They
further submitted that the “interference” complained of
had corresponded to a “pressing social need”, that it had
been proportionate to the legitimate aim pursued and that the reasons
given by the national authorities to justify it had been relevant and
sufficient (see Skałka v. Poland, no. 43425/98,
§ 35, 27 May 2003). The medical courts had established
that the applicant had openly and persistently expressed negative
opinions about the chief physician’s qualifications in the
presence of other doctors and medical staff, and even in the presence
of patients and their families, which constituted an offence under
Article 52 § 2 of the Code of Medical Ethics.
They
further argued that medical practitioners enjoyed a special
relationship with patients based on trust, confidentiality and
confidence that the former would use all available knowledge and
means to ensure the well being of the latter. That could imply a
need to preserve solidarity among members of the profession (see
Frankowicz v. Poland, no. 53025/99, § 49,
16 December 2008).
The
Government emphasised that the applicant had expressed negative
opinions about the head physician’s qualifications on account
of the conflict between them. That conflict had deprived the
applicant’s statements of objectivity. Her views on her
superior’s professional performance could not therefore be seen
as a reasonable critical assessment, from a medical point of view, of
the treatment received by the patients from another doctor, but
rather as gratuitous personal attacks.
The
Government argued that during the disciplinary proceedings the
medical courts had examined numerous pieces of evidence submitted to
them.
The
Government concluded that the domestic authorities, when justifying
the interference concerned in the present case, had relied on grounds
which were both relevant and sufficient.
The
Government stressed that the applicant had been found guilty only in
disciplinary proceedings. No civil or criminal proceedings on a
public indictment had been instituted or even envisaged against her.
Lastly, the penalty imposed on her had been one of the most lenient
possible and concerned not only the breach of Article 52 § 2
of the Code of Medical Ethics but also other charges brought against
the applicant. In sum, the interference was necessary to achieve a
balance between the protection of patients’ health, the
interests of other medical practitioners and the applicant’s
right to freedom of expression.
The
applicant submitted that she had been penalised for having
expressed her opinions concerning matters of clinical judgment which
were of the highest importance for the patients and for disclosing
the true facts relating to W.R.K.’s professional qualifications
and conduct. The medical courts had unduly focused on the applicant’s
criticism of the conduct of a colleague, having completely failed to
take into consideration the quality of diagnostic and therapeutic
measures administered to the patients. They had failed to examine
whether the applicant’s acts had been intended to protect the
patients’ interests. The courts had been overly concerned with
the protection of the applicant’s former superior’s
reputation, to the detriment of everything else.
The
applicant further emphasised that the findings of the medical courts
had been completely inconsistent with the findings made by the labour
court, both as to the facts and as to the law. She argued that this
cast serious doubt on the former’s correctness and lawfulness.
2. The general principles
The
Court reiterates that freedom of expression, as secured in
paragraph 1 of Article 10, constitutes one of the essential
foundations of a democratic society and one of the basic conditions
for its progress and for each individual’s self-fulfilment.
Subject to paragraph 2, it is applicable not only to
“information” or “ideas” that are favourably
received or regarded as inoffensive or as a matter of indifference,
but also to those that offend, shock or disturb. Such are the demands
of that pluralism, tolerance and broadmindedness without which there
is no “democratic society” (see, among many other
authorities, Oberschlick v. Austria (no. 1), 23 May
1991, § 57, Series A no. 204; and Nilsen and
Johnsen v. Norway [GC], no. 23118/93, § 43,
ECHR 1999 VIII).
The
Court would also point out that Article 10 guarantees freedom of
expression to “everyone”. The Court has held on many
occasions that Article 10 applies to all kinds of information or
ideas or forms of expression including when the type of aim pursued
is profit-making or relates to a commercial activity of an applicant
(see Casado Coca v. Spain, 24 February 1994, § 35,
Series A no. 285 A; Barthold v. Germany,
25 March 1985, § 42, Series A no. 90;
Stambuk v. Germany, no. 37928/97, §§ 43 52,
17 October 2002; and Frankowicz v. Poland,
no. 53025/99, § 39, 16 December 2008).
The
Court’s task, in exercising its supervisory jurisdiction, is
not to take the place of the competent national authorities but
rather to review under Article 10 the decisions they delivered
pursuant to their power of appreciation. This does not mean that the
supervision is limited to ascertaining whether the respondent State
exercised its discretion reasonably, carefully and in good faith;
what the Court has to do is to look at the interference complained of
in the light of the case as a whole and determine whether it was
‘proportionate to the legitimate aim pursued’ and whether
the reasons adduced by the national authorities to justify it are
‘relevant and sufficient’... In doing so, the Court has
to satisfy itself that the national authorities applied standards
which were in conformity with the principles embodied in Article 10
and, moreover, that they relied on an acceptable assessment of the
relevant facts...” (see, among many other authorities, Sunday
Times (no. 1) v. the United Kingdom, 26 April 1979,
§ 62, Series A no. 30; Guja v. Moldova [GC],
no. 14277/04, § 69, 12 February 2008).
Under
the Court’s case-law, the States parties to the Convention have
a certain margin of appreciation in assessing the necessity of an
interference, but this margin is subject to European supervision as
regards both the relevant rules and the decisions applying them (see,
inter alia, markt intern Verlag GmbH and
Klaus Beermann v. Germany, 20 November
1989, § 33, Series A no. 165; and Casado
Coca, cited above, § 50).
3. The application of the general principles to the
above case
The
Court first observes that it is common ground between the parties
that the reprimand imposed on the applicant by the Medical Court
amounted to an interference with the exercise of her right to freedom
of expression.
Such interference infringes the Convention if it does
not satisfy the requirements of paragraph 2 of Article 10.
It must therefore be determined whether it was “prescribed by
law”, whether it pursued one or more of the legitimate aims set
out in that paragraph and whether it was “necessary in a
democratic society” to achieve such aims.
The
Court observes that the interference was based on Article 1
paragraph 3 and Article 52 paragraphs 1, 2 and 3 of the
Code of Medical Ethics. The medical courts found the applicant guilty
of unethical conduct punishable under those provisions of the Code.
The conduct was said to consist of: failure to comply with her
superior’s orders (paragraph 1); publicly making
disparaging statements about her superior to the medical staff of the
ward (paragraph 2); informing other doctors about what she perceived
to be erroneous decisions on her superior’s part and taking
patients’ medical records out of the hospital to show them to
the regional consultant (paragraph 3); and inability to work in
a medical team (Article 1 paragraph 3 of the Code) (see
paragraph 27 above). The Court is of the view that only the issues
arising in connection with offences of publicly making disparaging
statements about her superior to the medical staff of the ward and
informing other doctors about what she perceived to be erroneous
decisions on her superior’s part are relevant for the
applicant’s complaint under Article 10 of the Convention.
Notwithstanding the fact that following the applicant’s
conviction the Constitutional Court held that a strict interpretation
of Article 52 (2) of that Code was unconstitutional, the Court
can accept, for the reasons outlined above (see paragraph 55)
that the interference complained of was at the material time
“prescribed by law” within the meaning of Article 10
of the Convention.
The
interference with the applicant’s right to freedom of
expression was intended to pursue a legitimate aim referred to in
Article 10 § 2 of the Convention, namely to protect
the rights and reputation of others.
The
Court will therefore examine whether the interference with the
applicant’s right to freedom of expression was necessary in a
democratic society.
The
Court has already held that matters relating to the practice of a
profession practice are not removed from the protection of Article 10
of the Convention (see paragraph 68 above; see also Frankowicz
v. Poland, cited above, § 9).
The
disciplinary authorities considered the applicant guilty of unethical
conduct in breach of the principle of professional solidarity, in
violation of the Code of Medical Ethics.
The
Court notes that the applicant, a doctor in a public hospital,
expressed concern in her letter of 16 September 2004 to the
regional consultant about the correctness of diagnostic and
therapeutic decisions made by her superior. She referred to concrete
cases and provided detailed explanations as to why she was of the
view that the quality of medical care given to those patients was
open to criticism.
The
Court further notes the findings of the labour court that the
applicant, even prior to that letter, had already alerted the
director of the hospital to what she perceived as shortcomings in the
professional decisions made by W.R.K. That court had also found that
the applicant had informed the director that she had shown the
medical records of certain patients to the regional consultant and
that the director had not formulated any objections with regard to
that action. Hence, the Court is satisfied that the applicant took
steps with a view to drawing the attention of the competent
authorities to what she perceived as a serious dysfunction in the
work of her then superior.
The
Court is well aware that the applicant and her superior were in a
long-standing conflict. This is not in dispute and has been confirmed
by various pieces of evidence which were before the domestic courts.
However, the Court does not share the Government’s conviction
that the background to that conflict automatically divested the
negative statements made by the applicant about her superior of all
objectivity and legitimacy. It should be noted that the case before
the medical authorities did not concern any negative statements about
W.R.K.’s character or gratuitous attacks against her. The
domestic courts did not find that the applicant had personally
insulted the head physician in any way. The applicant was penalised
essentially for the fact that she had expressed concerns, to persons
working in the ward, to the hospital’s authorities and to the
regional consultant, about the quality of medical care given to
patients on her superior’s orders.
The
Court has previously acknowledged, in the context of the legal
profession, that the special nature of the profession practised by an
applicant must be considered in assessing whether the restriction on
the applicant’s right answered any pressing need (see Steur
v. the Netherlands, no. 39657/98, § 38, ECHR
2003 XI). Medical practitioners also enjoy a special
relationship with patients based on trust, confidentiality and
confidence that the former will use all available knowledge and means
to ensure the well-being of the latter. That can imply a need to
preserve solidarity among members of the profession (see Frankowicz
v. Poland, cited above, § 49).
However,
the Court observes that the domestic authorities, in finding that the
applicant had discredited another doctor, did not make any serious
assessment of the truthfulness of the statements included in the
opinion (see Veraart v. the Netherlands, no. 10807/04,
§§ 60 and 61, 30 November 2006). On no occasion
during the domestic proceedings was it established that the
applicant’s clinical judgment was deficient, or that she lacked
professional skills. Indeed, the labour court, in its judgment of
22 December 2005, found that the applicant was a very good
specialist (see paragraph 11 above). Furthermore, at no time did
the disciplinary courts address the question whether the applicant’s
statements had been made in good faith.
The
medical courts failed to address in their decisions the question of
whether the applicant’s concerns had been justified. They
rather focused on the mere fact that the Code of Medical Ethics as it
stood at the material time prohibited criticism of other colleagues.
Such
a strict interpretation of the domestic law by the disciplinary
courts as to ban any critical expression in the medical profession is
not consonant with the right to freedom of expression (see Stambuk,
cited above, § 50). The Court has already found, in another
case against Poland (Frankowicz v. Poland, cited above)
in which the application of Article 52 (2) of the Code of
Medical Ethics was concerned, that this approach to the matter of
expressing a critical opinion of a colleague, even in the context of
the medical profession, risks discouraging medical practitioners from
providing their patients with an objective view of their state of
health and treatment received, which in turn could jeopardise the
ultimate goal of the medical profession - that is to protect the
health and life of patients.
The
Court notes that the domestic authorities did not examine whether the
applicant had been defending a socially justified interest. The Court
considers that the applicant’s opinion was a critical
assessment, from a medical point of view, of treatment received by
patients from another doctor. Thus, it concerned issues of public
interest.
Lastly,
the Court has also been struck by the fact that the medical court
paid no heed to the findings of the labour court. It could reasonably
be expected that certain passages in the reasons of the latter’s
judgment could have been referred to by the medical court as they
were highly pertinent for the findings of fact to be made and also
for the legal assessment of the situation. In particular, the medical
court found the applicant guilty of amending medical records without
informing her superior (see paragraph 28 above). This does not
sit well with the finding made by the labour court that in 2004 the
hospital’s director had reviewed the medical records of the
ward’s patients and found no irregularities (see paragraph 12
above). Nor does it appear compatible with the labour court’s
conclusion that these allegations had not been confirmed by the
evidence (see paragraphs 13 and 14 above). It is further noted
that the medical court found the applicant guilty of an offence
punishable under Article 52 (3) of the Code of Medical
Ethics in that she had improperly taken the medical records out of
the hospital to show them to the regional consultant (see
paragraph 27 above). The findings of the medical court in this
respect are also incompatible with the findings of the labour court
which held that such conduct was expressly recommended by the Law on
the Profession of Physicians (see paragraph 14 above).
The
Court is of the view that such serious discrepancies between, on the
one hand, the judicial decision delivered by the court in civil
proceedings following a fair procedure and, on the other, the
decision of the medical court must be seen as detracting from the
authority of the latter decision.
To
sum up, the Court takes the view that the grounds relied on by the
medical courts were neither relevant nor sufficient.
In
conclusion, the Court considers that the interference complained of
was not proportionate to the legitimate aim pursued and, accordingly,
was not “necessary in a democratic society”.
Consequently, it gave rise to a violation of Article 10 of
the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that her right to a fair hearing had been
breached. The judgment of the District Court confirmed the
applicant’s submissions concerning her efforts to protect the
patients’ interests. The findings of fact of the labour courts
had concerned the same events as those discussed in the disciplinary
case and had been of a great relevance for the latter’s
outcome. Had they been duly taken into consideration by the Regional
Medical Court, they would have helped the applicant to refute the
allegations made against her.
The
Government contested that argument.
The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
However,
having regard to the finding relating to Article 10 of the
Convention (see paragraph 87 above), the Court considers that
this part of the application raises no issues separate from those
which have already been examined in connection with the complaint
under Article 10 of the Convention.
It
is therefore not necessary to examine whether there has been a
violation of Article 6 of the Convention in this regard.
The
applicant further submitted that the Medical Court had disregarded
her motion for evidence to be taken from the case file of the labour
case and that it had failed to call her witnesses and had only heard
witnesses who testified against her. She further complained that the
regional medical court was not impartial, given that W.R.K.’s
husband was one of the Regional Attorneys for Professional Liability.
The
Government disagreed.
The
Court notes that the file of the labour law case was included in the
file of the disciplinary proceedings (see paragraph 26 above). It
further observes that it has not been shown that the W.R.K.’s
husband was in any way involved in the proceedings against the
applicant. Therefore, in the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that this complaint does not disclose any
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols.
It
follows that this part of the application is manifestly ill founded
and must be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed EUR 50,000 in respect of non pecuniary
damage. This sum covered damage caused to her by the disciplinary
proceedings against her and the anguish and damage to her
professional reputation.
The
Government submitted that the sum claimed by the applicant was
excessive. They invited the Court to rule that the finding of a
violation constituted in itself sufficient just satisfaction for the
non-pecuniary damage sustained by the applicant.
The Court considers that the applicant must have
sustained non pecuniary damage and that sufficient just
satisfaction would not be provided solely by a finding of a violation
of the Convention. It awards the applicant EUR 3,000 under this
head.
B. Costs and expenses
The
applicant also claimed PLN 1,440 for the costs and expenses
incurred before the domestic courts.
The
Government contested this.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the applicant’s claim in full.
It therefore awards EUR 360 to the applicant.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible as regards
the complaints under Articles 10 and 6 of the Convention
(alleged failure of the Regional Medical Court to take account of the
Labour Court’s findings) and the remainder inadmissible;
Holds that there has been a violation of
Article 10 of the Convention;
Holds that there is no need to examine the
complaint under Article 6 of the Convention;
Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, the following amounts, to be converted into Polish zlotys
at the rate applicable at the date of settlement;
(i) EUR 3,000
(three thousand euros), plus any tax that may be chargeable, in
respect of non pecuniary damage;
(ii) EUR 360
(three hundred and sixty euros), plus any tax that may be chargeable
to the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 18 October 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza Registrar President
