European Court of Human Rights - case of Le Compte, Van Leuven and De Meyere v. Belgium (1981) (excerpts)

European Court of Human Rights - case of Le Compte, Van Leuven and De Meyere v. Belgium (1981)

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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.

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 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.

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