Print EUROPEAN COURT OF HUMAN RIGHTS
(excerpts - emphasis added in the text - of particular relevance to the subject considered are paragraphs 54 through 61 )
In the case of Le Compte, Van Leuven and De Meyere,
The European Court of Human Rights, taking its decision in plenary session in application of Rule 48 of the Rules of Court and composed of the following judges:
Mr. G. WIARDA, President,
Mr. R. RYSSDAL,
Mr. H. MOSLER,
Mr. M. ZEKIA,
Mr. J. CREMONA,
Mr. THÓR VILHJÁLMSSON,
Mrs. D. BINDSCHEDLER-ROBERT,
Mr. D. EVRIGENIS,
Mr. G. LAGERGREN,
Mr. L. LIESCH,
Mr. F. GÖLCÜKLÜ,
Mr. F. MATSCHER,
Mr. J. PINHEIRO FARINHA,
Mr. E. GARCIA de ENTERRIA,
Mr. M. SØRENSEN,
Mr. L.-E. PETTITI,
Mr. B. WALSH,
Sir VINCENT EVANS,
Mr. R. MACDONALD,
Mr. A. VANWELKENHUYZEN, ad hoc judge,
and also Mr. M.-A. EISSEN, Registrar, and Mr. H. PETZOLD, Deputy Registrar,
Having deliberated in private from 26 to 28 November 1980 and then on 29 and 30 January and 27 May 1981,
Delivers the following judgment, wich was adopted on the last-mentioned date:
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AS TO THE FACTS
I. THE PARTICULAR CIRCUMSTANCE OF THE CASE
A. Dr. Le Compte
8. Dr. Herman Le Compte, a Belgian national born in 1929 and resident at Knokke-Heist, is a medical practitioner.
I. The suspension ordered in 1970
9. On 28 October 1970, the West Flanders Provincial Council of the Ordre des médecins (Medical Association), which sits in Bruges, ordered that Dr. Le Compte's right to practise medicine be suspended for six weeks. The ground was that he had given to a Belgian newspaper an interview considered by the Council to amount to publicity incompatible with the dignity and reputation of the profession. The applicant lodged an objection (opposition) against this decision, which had been given in absentia, but it was confirmed by the Provincial Council on 23 December 1970, the applicant again having failed to appear.
Dr. Le Compte thereupon referred the matter firstly to the Appeals Council of the Ordre des médecins, which, on 10 May 1971, held his appeal to be inadmissible, and secondly to the Court of Cassation, on 7 April 1972, the latter declared his appeal on a point of law inadmissible, on the ground that it had been filed without the assistance of a lawyer entitled to practise before that Court.
The order suspending Dr. Le Compte's right to practise became effective on 20 May 1972 but he did not comply with it. For this reason, on 20 February 1973, the Furnes criminal court (tribunal correctionnel) sentenced him, pursuant to Article 31 of Royal Decree no. 79 of 10 November 1967 on the Ordre des médecins, to imprisonment and a fine.
This decision was confirmed on 12 September 1973 by the Ghent Court of Appeal; a appeal by Dr. Le Compte on a point of law was dismissed by the Court of Cassation on 25 June 1974.
2. The suspension ordered in 1971
10. Concurrently with the foregoing proceedings, which are not in issue in the present case (see paragraph 36 below), further proceedings were in progress. In fact, on 30 June 1971 the Provincial Council of the Ordre des médecins had, by a decision rendered in absentia, ordered another suspension, for three months, of the applicant's right to practise: the Council stated that he had publicised in the press the above-mentioned decisions of the disciplinary organs of the Ordre and his criticisms of those organs, such conduct constituting contempt of the Ordre.
11. Dr. Le Compte had appealed to the Appeals Council of the Ordre which had confirmed this decision although without upholding the allegation of contempt. He had then referred the matter to the Court of Cassation, where he relied on the same grounds.
He contended in the first place that compulsory membership of the Ordre des médecins, without which no one may practise medicine and subjection to the jurisdiction of its disciplinary organs were contrary to the principle of freedom of association, which is guaranteed by Article 20 of the Belgian Constitution and Article 11 (art. 11) of the Convention.
The Court rejected this plea in the following terms:
"... compulsory entry on the register of an ordre which, like the Ordre des médecins, is a public-law institution having the function of ensuring the oberservance of the medical profession's rules of professional conduct and the maintenance of the reputation, standards of discretion, probity and dignity of its members cannot be regarded as incompatible with freedom of association, as guaranteed by Article 20 of the Constitution; ... the appellant does not allege that the rule which he is challenging goes beyond the bounds of the restrictions authorised by Article 11 par. 2 (art. 11-2) of the Convention, for example for the protection of health."
The applicant also alleged a violation of Articles 92 and 94 of the Constitution: the first provides that the courts of law shall have exclusive jurisdiction to determine disputes over civil rights and the second prohibits the establishment of extraordinary tribunals for the purpose of resolving such disputes. He pointed out that the decision complained of had nonetheless been taken by a disciplinary organ, set up by Royal Decree no. 79, and that it had given a ruling on a civil right, namely the right to practise medicine.
The Court of Cassation replied that "disciplinary proceedings and the imposition of disciplinary sanctions are, in principle, unrelated to the disputes over which exclusive jurisdiction is reserved to the courts of law by Article 92 of the Constitution". The Court added that, since the Councils of the Ordre des médecins did not have jurisdiction to determine such disputes, "they are not extraordinary tribunals whose estblishment is prohibited by Article 94". Finally, the Court observed that section 1 par. 8 (a) of the Act of 31 March 1967 (see paragraph 20 below) empowered the Crown "to reform and adapt the legislation governing the practice of the various branches of medicine" and that "the legislature was referring, inter alia, to the Act of 25 July 1938 establishing the Ordre des médecins, which Act conferred disciplinary powers on the Councils of the Ordre".
Lastly, Dr. Le Compte alleged that there had been a violation of Article 6 par. 1 (art. 6-1) of the Convention. He argued that the decision complained of had been given without any public inquiry and by a tribunal composed of medical practitioners, which could not be regarded as impartial since the kind of conduct of which he was accused might harm his colleagues.
The Court of Cassation confined itself to pointing out that Article 6 par. 1 (art. 6-1) did not apply to disciplinary proceedings.
Accordingly, by judgment of 3 May 1974, the appeal was dismissed.
12. Dr. Le Compte did not comply with the order suspending his right to practise medicine, which became final following the Court of Cassation's judgment. On that account he was sentenced by the Bruges criminal court on 16 September and 15 October 1974 to terms of imprisonment and fines. He lodged an appeal against the first decision and an objection against the second, which had been rendered in absentia.
13. Since that time, a number of further proceedings have been instituted, both disciplinary, for the publicity given by the applicant to his dispute with the Ordre, and criminal, for his refusal to comply with the measures imposed by its Councils.
One of the disciplinary proceedings resulted in Dr. Le Compte's being struck off the register of the Odre with efect from 26 December 1975. In this connection he lodged a further application (no. 7496/76) with the Commission on 6 May 1976; that application, which the Commission declared admissible on 4 December 1979, is not relevant for the examination of the present case.
The criminal proceedings, at first instance, led to prison sentences and to fines.
B. Dr. Van Leuven and Dr. De Meyere
14. Dr. Frans Van Leuven and Dr. Marc De Meyere are medical practitioners, born in 1931 and 1940, respectively. Both of them reside at Merelbeke and are Belgian nationals.
15. On 20 January 1973, thirteen medical practitioners practising in and around Merelbeke filed a complaint to the effect that these two applicants had committed breaches of the rules of professional conduct; it was alleged, in particular, that they had systematically limited their fees to the amounts reimbursed by the Social Security, even when on emergency duty, and had distributed without charge to private houses a fortnightly magazine called Gezond in which general practitioners were held up to ridicule. On 14 March 1973, the applicants were heard by the Bureau of the Provincial Council of the Ordre. They admitted that they had limited the fees charged to their own clients but not the fees charged when they were on emergency duty. In addition, they pointed out that they were not the publishers of Gezond and they denied that they had lampooned their colleagues in its pages.
16. On 19 March 1973, another medical practitioner lodged a further complaint against the applicants; he alleged that, two days after their appearance before the Bureau of the Provincial Council, they had put up in the waiting rooms of the Merelbeke medical centre a notice informing the public of the first complaint and the reasons therefor. On 23 May 1973, the Bureau of the Provincial Council heard the applicants in connection with the second complaint. They declared that they were entitled to provide the public with information about the situation, especially as it was already a matter of common knowledge.
17. The East Flanders Provincial Council of the Ordre des médecins, which sits in Ghent, summoned Dr. Van Leuven and Dr. De Meyere to answer several allegations.
On 24 October 1973, it directed that their right to practise medicine be suspended for a period of one month for having charged fees limited to the amounts reimbursed by the Social Security, for having contributed to the magazine Gezond and for having made therein public utterances judged offensive to their colleagues. In addition, Dr. Van Leuven was reprimanded for his behaviour when appearing before the Bureau of the Provincial Council on 14 March 1973. These various decisions were based on Articles 6 par. 2 and 16 of Royal Decree no. 79.
The Provincial Council considered, on the other hand, that the posting in the waiting rooms of the medical centre of a notice judged contrary to the rules of professional conduct did not warrant a disciplinary sanction, bearing in mind that the notice had been removed following a request from the Bureau.
18. The applicants appealed to the Appeals Council.
On 24 June 1974, the latter declared the appeal admissible and upheld the Provincial Council's decision insofar as it had found established the allegations relating to the charging of fees limited to the amounts reimbursed by the Social Security and the contribution to the magazine Gezond. For the rest, the Appeals Council set aside the decision challenged and, after taking into account the complaint regarding the notice in the waiting rooms and joining it with the two other complaints, directed that the right of Dr. Van Leuven and Dr. De Meyere to practise medicine be suspended for a period of fifteen days.
19. On 25 April 1975, the Court of Cassation ruled against the applicants, who had appealed on a point of law.
The Court rejected the ground of appeal based on breach of Article 11 (art. 11) of the Convention; it considered that the functions of the Ordre des médecins "are by no means unrelated to the protection of health and that compulsory entry ... on the register of an Ordre of this kind does not exceed the restrictions on freedom of association which are necessary for the protection of health".
The Court in addition declared inadmissible, for want of legal interest, the ground of appeal to the effect that the limitation of fees to the amounts reimbursed by the Social Security was in conformity with both the law and the rules of professional conduct for medical practitioners; the Court found that the suspension had in fact also been imposed as a sanction for other disciplinary offences.
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FINAL SUBMISSIONS MADE TO THE COURT
37. In their memorial, the Government submitted:
"[May it please the Court] to hold that the facts of the present case do not disclose any breach by the Belgian State of its obligations under the European Convention on Human Rights."
AS TO THE LAW
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II. THE ALLEGED VIOLATION OF ARTICLE 6 par. 1 (art. 6-1)
39. The applicants claimed that they were victims of violations of Article 6 par. 1 (art. 6-1), which reads as follows:
"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."
40. Having regard to the submissions of those appearing before the Court, the first question for decision is whether this paragraph is applicable; the majority of the Commission affirmed that it was, but this was disputed by the Government.
A. The applicability of Article 6 par. 1 (art. 6-1)
41. Article 6 par. 1 (art. 6-1) applies only to the determination of "civil rights and obligations or of any criminal charge" (in the French text: "contestations sur [des] droits et obligations de caractère civil" and "bien-fondé de toute accusation en matière pénale"). As the Court has found on several occasions, certain cases (in the French text: "causes") are not comprised within either of these categories and thus fall outside the Article's scope (see, for example, the Lawless judgment of 1 July 1961, Series A no. 3, p. 51,par. 12; the Neumeister jugment of 27 June 1968, Series A no. 8, p. 43, par. 23; the Guzzardi judgment of 6 November 1980, Series A no. 39, p. 40, par. 108).
42. Thus, as the Government rightly emphasised with reference to the Engel judgment of 8 June 1976, disciplinary proceedings as such cannot be characterised as "criminal"; nevertheless, this may not hold good for certain specific cases (Series A no. 22, pp. 33-36, par. 80-85).
Again, disciplinary proceedings do not normally lead to a contestation (dispute) over "civil rights and obligations" (ibid., p. 37, par. 87 in fine). However, this does not mean that the position may not be different in certain circumstances. The Court has not so far had to resolve this issue expressly; in the König case, which was cited by the Commission and the Government, the applicant was complaining solely of the duration of proceedings which he had instituted before administrative courts after an administrative body had withdrawn his authorisation to run his clinic and then his authorisation to practise medicine (judgment of 28 June 1978, Series A no. 27, p. 8, par. 18, and p. 28, par. 85; see also above-mentioned Engel judgment, pp. 36-37, par. 87, first sub-paragraph).
43. In the present case, it is necessary to determine whether Article 6 par. 1 (art. 6-1) applied to the whole or part of the proceedings that took place before the Provincial and Appeals Councils, which are disciplinary organs, and subsequently before the Court of Cassation, a judicial body.
At least after the admissibility decisions of 6 October 1976 and 10 March 1977, the Government, the Commission and the applicants scarcely discussed this issue other than in the context of the words "contestations" (disputes) over "civil rights and obligations". The Court considers that it too should take this as its starting-point.
1. The existence of "contestations" (disputes) over "civil rights and obligations"
44. In certain respects, the meaning of the words "contestations" (disputes) over "civil rights and obligations" has been clarified in the Ringeisen judgment of 16 July 1971 and the König judgment of 28 June 1978.
According to the first of these judgments, the phrase in question covers "all proceedings the result of which is decisive for private rights and obligations", even if the proceedings concern a dispute between an individual and a public authority acting in its sovereign capacity; the character "of the legislation which governs how the matter is to be determined" and of the "authority" which is invested with jurisdiction in the matter are of little consequence (Series A no. 13, p. 39, par. 94).
The very notion of "civil rights and obligations" lay at the heart of the König case. The rights at issue included the right "to continue his professional activities" as a medical practitioner "for which he had obtained the necessary authorisations". In the light of the circumstances of that case, the Court classified this right as private, and hence as civil for the purposes of Article 6 par. 1 (art. 6-1) (loc. cit., pp. 29-32, par. 88-91 and 93-95).
The ramifications of this line of authority are again considerably extended as a result of the Golder judgment of 21 February 1975. The Court concluded that "Article 6 par. 1 (art. 6-1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal" (Series A no. 18, p. 18, par. 36). One consequence of this is that Article 6 par. 1 (art. 6-1) is not applicable solely to proceedings which are already in progress: it may also be relied on by anyone who considers that an interference with the exercise of one of his (civil) rights is unlawful and complains that he has not had the possibility of submitting that claim to a tribunal meeting the requirements of Article 6 par. 1 (art. 6-1).
45. In the present case, a preliminary point needs to be resolved: can it be said that there was a veritable "contestation" (dispute), in the sense of "two conflicting claims or applications" (oral submissions of counsel for the Government)?
Conformity with the spirit of the Convention requires that this word should not be construed too technically and that it should be given a substantive rather than a formal meaning; besides, it has no counterpart in the English text of Article 6 par. 1 (art. 6-1) ("In the determination of his civil rights and obligations"; cf. Article 49 (art. 49): "dispute").
Even if the use of the French word "contestation" implies the existence of a disagreement, the evidence clearly shows that there was one in this case. The Ordre des médecins alleged that the applicants had committed professional misconduct rendering them liable to sanctions and they denied those allegations. After the competent Provincial Council had found them guilty of that misconduct and ordered their suspension from practice - decisions that were taken in absentia in the case of Dr. Le Compte (West Flanders) and after hearing submissions on issues of fact and of law from Dr. Van Leuven and Dr. De Meyere in their cases (East Flanders) -, the applicants appealed to the Appeals Council. They all appeared before that Council where, with the assistance of lawyers, they pleaded amongst other things Articles 6 par. 1 and 11 (art. 6-1, art. 11). In most respects their appeals proved unsuccessful, whereupon they turned to the Court of Cassation relying once more, inter alia, on the Convention (see paragraphs 10-11 and 15-19 above).
46. In addition, it must be shown that the "contestation" (dispute) related to "civil rights and obligations", in other words that the "result of the proceedings" was "decisive" for such a right (see the above-mentioned Ringeisen judgment).
According to the applicants, what was at issue was their right to continue to exercise their profession; they maintained that this had been recognised to be a "civil" right in the König judgment of 28 June 1978 (loc. cit., pp. 31-32, paragraphs 91 and 93).
According to the Government, the decisions of the Provincial and Appeals Councils had but an "indirect effect" in the matter. It was argued that these organs, unlike the German administrative courts in the König case, did not review the lawfulness of an earlier measure withdrawing the right to practise but had instead to satisfy themselves that breaches of the rules of professional conduct, of a kind justifying disciplinary sanctions, had actually occurred. A "contestation" (dispute) over the right to continue to exercise the medical profession was said to have arisen, if at all, "at a later stage", that is when Dr. Le Compte, Dr. Van Leuven and Dr. De Meyere contested before the Court of Cassation the lawfulness of the measures imposed on them. The Government further submitted that this right was not "civil" and invited the Court not to follow the decision which it took in this respect in the König judgment.
7. As regards the question whether the dispute related to the above-mentioned right, the Court considers that a tenuous connection or remote consequences do not suffice for Article 6 par. 1 (art. 6-1), in either of its official versions ("contestation sur", "determination of"): civil rights and obligations must be the object - or one of the objects - of the "contestation" (dispute); the result of the proceedings must be directly decisive for such a right.
Whilst the Court agrees with the Government on this point, it does not agree that in the present case there was not this kind of direct relationship between the proceedings in question and the right to continue to exercise the medical profession. The suspensions ordered by the Provincial Council on 30 June 1971 (Dr. Le Compte) and on 24 October 1973 (Dr. Van Leuven and Dr. De Meyere) were to deprive them temporarily of their rights to practise. That right was directly in issue before the Appeals Council and the Court of Cassation, which bodies had to examine the applicants' complaints against the decisions affecting them.
48. Furthermore, it is by means of private relationships with their clients or patients that medical practitioners in private practice, such as the applicants, avail themselves of the right to continue to practise; in Belgian law, these relationships are usually contractual or quasi-contractual and, in any event, are directly established between individuals on a personal basis and without any intervention of an essential or determining nature by a public authority. Accordingly, it is a private right that is at issue, notwithstanding the specific character of the medical profession - a profession which is exercised in the general interest - and the special duties incumbent on its members.
The Court thus concludes that Article 6 par. 1 (art. 6-1) is applicable; as in the König case (see the above-mentioned judgment, p. 32, par. 95), it does not have to determine whether the concept of "civil rights" extends beyond those rights which have a private nature.
49. Two members of the Commission, Mr. Frowein and Mr. Polak, emphasised in their dissenting opinion that the present proceedings did not concern a withdrawal of the authorisation to practise, as did the König case, but a suspension for a relatively short period - three months for Dr. Le Compte and fifteen days for Dr. Van Leuven and Dr. de Meyere. These members maintained that a suspension of this kind did not impair a civil right but was to be regarded as no more than a limitation inherent therein.
The Court is not convinced by this argument, which the Government adopted as a further alternative plea in paragraph 19 of their memorial. Unlike certain other disciplinary sanctions that might have been imposed on the applicants (warning, censure and reprimand - see paragraph 32 above), the suspension of which they complained undoubtedly constituted a direct and material interference with the right to continue to exercise the medical profession. The fact that the suspension was temporary did not prevent its impairing that right (see, mutatis mutandis, the above-mentioned Golder judgment, p. 13, par. 26); in the "contestations" (disputes) contemplated by Article 6 par. 1 (art. 6-1) the actual existence of a "civil" right may, of course, be at stake but so may the scope of such a right or the manner in which the beneficiary may avail himself thereof.
50. Since the dispute over the decisions taken against the applicants has to be regarded as a dispute relating to "civil rights and obligations", it follows that they were entitled to have their case (in French: "cause") heard by "a tribunal" satisfying the conditions laid down in Article 6 par. 1 (art. 6-1) (see the above-mentioned Golder judgment, p. 18, par. 36).
51. In fact, their case was dealt with by three bodies - the Provincial Council, the Appeals Council and the Court of Cassation. The question therefore arises whether those bodies met the requirements of Article 6 par. 1 (art. 6-1).
(a) The Court does not consider it indispensable to pursue this point as regards the Provincial Council. Whilst Article 6 par. 1 (art. 6-1) embodies the "right to a court" (see paragraph 44 above), it nevertheless does not oblige the Contracting States to submit "contestations" (disputes) over "civil rights and obligations" to a procedure conducted at each of its stages before "tribunals" meeting the Article's various requirements. Demands of flexibility and efficiency, which are fully compatible with the protection of human rights, may justify the prior intervention of administrative or professional bodies and, a fortiori, of judicial bodies which do not satisfy the said requirements in every respect; the legal tradition of many member States of the Council of Europe may be invoked in support of such a system. To this extent, the Court accepts that the arguments of the Government and of Mr. Sperduti in his separate opinion are correct.
(b) Once the Provincial Council had imposed on Dr. Le Compte, Dr. Van Leuven and Dr. De Meyere a temporary ban on the exercise of their profession, they appealed to the Appeals Council which thus had to determine the dispute over the right in question.
According to the Government, the Appeals Council nevertheless did not have to meet the conditions contained in Article 6 par. 1 (art. 6-1) since an appeal on a point of law against its decision lay to the Court of Cassation and that Court's procedure certainly did satisfy those conditions.
The Court does not agree. For civil cases, just as for criminal charges (see the Deweer judgment of 27 February 1980, Series A no. 35, pp. 24-25, par. 48), Article 6 par. 1 (art. 6-1) draws no distinction between questions of fact and questions of law. Both categories of question are equally crucial for the outcome of proceedings relating to "civil rights and obligations". Hence, the "right to a court" (see the above-mentioned Golder judgment, p. 18, par. 36) and the right to a judicial determination of the dispute (see the above-mentioned König judgment, p. 34, par. 98 in fine) cover questions of fact just as much as questions of law. Yet the Court of Cassation does not have jurisdiction to rectify factual errors or to examine whether the sanction is proportionate to the fault (see paragraph 33 above). It follows that Article 6 par. 1 (art. 6-1) was not satisfied unless its requirements were met by the Appeals Council itself.
2. The existence of "criminal charges"
52. When deciding on the admissibility of the applications, the Commission stated that the organs of the Ordre had not been required to determine criminal charges; the same point is made at paragraph 67 of the Commission's report.
53. The Court considers it superfluous to determine this issue, which was scarcely touched on by those appearing before it: as in the König case (see the above-mentioned judgment, pp. 32-33, p par. 96), those of the Article 6 (art. 6) rules which the applicants alleged were violated apply to both civil and criminal matters.
B. Compliance with Article 6 par. 1 (art. 6-1)
54. Having regard to the conclusion at paragraph 51 above, it has to be established whether in the exercise of their jurisdiction both the Appeals Council and the Court of Cassation met the conditions laid down by Article 6 par. 1 (art. 6-1), the former because it alone fully examined measures affecting a civil right and the latter because it conducted a final review of the lawfulness of those measures. It is therefore necessary to examine whether each of them in fact constituted a "tribunal" which was "established by law", "independent" and "impartial", and afforded the applicants a "public hearing".
55. Whilst the Court of Cassation, notwithstanding the limits on its jurisdiction (see paragraphs 33 and 51 above), obviously has the characteristics of a tribunal, it has to be ascertained whether the same may be said of the Appeals Council. The fact that it exercises judicial functions (see paragraph 26 above) does not suffice. According to the Court's case-law (the above-mentioned Neumeister judgment, p. 44; the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 41, par. 78; the above-mentioned Ringeisen judgment, p. 39, par. 95), use of the term "tribunal" is warranted only for an organ which satisfies a series of further requirements - independence of the executive and of the parties to the case, duration of its members' term of office, guarantees afforded by its procedure - several of which appear in the text of Article 6 par. 1 (art. 6-1) itself. In the Court's opinion, subject to the points mentioned below, those requirements were satisfied in the present cases.
56. Since it was set up under the Constitution (Article 95), the Court of Cassation is patently established by law. As for the Appeals Council, the Court notes, as did the Commission and the Government, that, like each of the organs of the Ordre des médecins, it was established by an Act of 25 July 1938 and re-organised by Royal Decree no. 79 of 10 November 1967, made under an Act of 31 March 1967 investing the King with certain powers (see paragraph 20 above).
57. There can be no doubt as to the independence of the Court of Cassation (see the Delcourt judgment of 17 January 1970, Series A no. 11, p. 19, par. 35). The Court, in company with the Commission and the Government, is of the opinion that this also applies to the Appeals Council. It is composed of exactly the same number of medical practitioners and members of the judiciary and one of the latter, designated by the Crown, always acts as Chairman and has a casting vote. Besides, the duration of a Council member's term of office (six years) provides a further guarantee in this respect (see paragraph 26 above).
58. The Court of Cassation raises no problem on the issue of impartiality (see the above-mentioned Delcourt judgment, p. 19, par. 35).
The Appeals Council, so the Commission stated in its opinion, did not, in the particular circumstances, constitute an impartial tribunal: whilst the legal members were to be deemed neutral, the medical members had, on the other hand, to be considered as unfavourable to the applicants since they had interests very close to those of one of the parties to the proceedings.
The Court does not agree with this argument concerning the Council's composition. The presence - already adverted to - of judges making up half the membership, including the Chairman with a casting vote (see paragraph 26 above), provides a definite assurance of impartiality and the method of election of the medical members cannot suffice to bear out a charge of bias (cf., mutatis mutandis, the above-mentioned Ringeisen judgment, p. 40, par. 97).
Again, the personal impartiality of each member must be presumed until there is proof to the contrary; in fact, as the Government pointed out, none of the applicants exercised his right of challenge (see paragraph 31 above).
59. Under the Royal Decree of 6 February 1970, all publicity before the Appeals Council is excluded in a general and absolute manner, both for the hearings and for the pronouncement of the decision (see paragraphs 31 and 34 above).
Article 6 par. 1 (art. 6-1) of the Convention does admittedly provide for exceptions to the rule requiring publicity - at least in respect of the trial of the action -, but it makes them subject to certain conditions. However, there is no evidence to suggest that any of these conditions was satisfied in the present case. The very nature both of the misconduct alleged against the applicants and of their own complaints against the Ordre was not concerned with the medical treatment of their patients. Consequently, neither matters of professional secrecy nor protection of the private life of these doctors themselves or of patients were involved; the Court does not concur with the Government's argument to the contrary. Furthermore, there is nothing to indicate that other grounds, amongst those listed in the second sentence of Article 6 par. 1 (art. 6-1), could have justified sitting in camera; the Government, moreover, did not rely on any such ground.
Dr. Le Compte, Dr. Van Leuven and Dr. de Meyere were thus entitled to have the proceedings conducted in public. Admittedly, neither the letter nor the spirit of Article 6 par. 1 (art. 6-1) would have prevented them from waiving this right of their own free will, whether expressly or tacitly (cf. the above-mentioned Deweer judgment, p. 26, par. 49); conducting disciplinary proceedings of this kind in private does not contravene the Convention, provided that the person concerned consents. In the present case, however, the applicants clearly wanted and claimed a public hearing. To refuse them such a hearing was not permissible under Article 6 par. 1 (art. 6-1), since none of the circumstances set out in its second sentence existed.
60. The public character of the proceedings before the Belgian Court of Cassation cannot suffice to remedy this defect. In fact, the Court of Cassation "shall not take cognisance of the merits of cases" (Article 95 of the Constitution and Article 23 of Royal Decree no. 79); this means that numerous issues arising in "contestations" (disputes) concerning "civil rights and obligations" fall outside its jurisdiction (see paragraphs 33 and 51 above). On the issues of this nature arising in the present case, there was neither a public hearing nor a decision pronounced publicly as required by Article 6 par. 1 (art. 6-1).
61. To sum up, the applicants' case (in French: "cause") was not heard publicly by a tribunal competent to determine all the aspects of the matter. In this respect, there was, in the particular circumstances, a breach of Article 6 par. 1 (art. 6-1).
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FOR THESE REASONS, THE COURT
1. Holds by fifteen votes to five that Article 6 par. 1 (art. 6-1) of the Convention was applicable in the present case;
2. Holds by sixteen votes to four that there has been a breach of the said provision in that the applicants' case was not heard publicly by a tribunal competent to determine all the aspects of the matter;
3. Holds unanimously that there has been no violation of Article 6 par. 1 (art. 6-1) as regards the applicants' other complaints, and no violation of Article 11 (art. 11);
4. Holds unanimously that the question of the application of Article 50 (art. 50) is not ready for decision:
(a) accordingly, reserves the whole of the said question;
(b) refers the said question back to the Chamber under Rule 50 par. 4 of the Rules of Court.
Done in English and in French, the French text being authentic, at the Human Rights Building, Strasbourg, this twenty-third day of June, one thousand nine hundred and eighty-one.
Signed: Gérard WIARDA
President
Signed: Marc-André EISSEN
Registrar
The following separate opinions are annexed to the present judgment in accordance with Article 51 par. 2 (art. 51-2) of the Convention and Rule 50 par. 2 of the Rules of Court:
- joint concurring opinion of Mr. Cremona and Mrs. Bindschedler-Robert;
- dissenting opinion of Mr. Liesch;
- partly dissenting opinion of Mr. Matscher;
- dissenting opinion of Mr. Pinheiro Farinha;
- concurring opinion of Mr. Pettiti;
- dissenting opinion of Sir Vincent Evans;
- dissenting opinion of Mr. Thór Vilhjálmsson.
Initialled: G.W.
Initialled: M.-A.E.
(…)