APPLICATION/ REQUÊTE N" 11504/8 5 Jean-Claude NYSTRÔM v/BELGIUM Jean-Claude NYSTRÔM c/BELGIQUE DECISION of 7 November 1988 on the admissibility of the application DÉCISION du 7 novembre 1988 sur la recevabilité de la requêt e Article 6, paragraph 1 of the Conven tion : a) The right ta continue practising medicine is a civil right , b) Although the civil and criminal aspects of Article 6 para . 1 are not mutually exclusive, the Commission, having taken a decision on one aspect, declined ta examine the other in rhis case . r) Objective and organisational impartiality of the Appeuls Council of the Belgian Medical Association : neidier ils composition (lire doctors and four lawyers, one of whom presides) nor the manner in which rite deniers are appomtedjustiJ`v the accusation that the body i.s partial. d) When an offence falls within bath disciplinary law and criminal law and the former but not the latter permits a reformatio in peins on appeal, a decision by the Appétits Council te strike off the register of the Belgian Médical Association, in this case aggravating the sanction imposed at first instance, dues not constatait, an infringement of the iigght ta a fair trial. Article 6, paragraphe 1, de la Convention : a) Le droit de continuer à pratiquer la médecine est un droit de caractère civil. b) Bien que les aspects civil et pénal de l'article 6par. 1 ne s'excluent pas, la Commission, s'étant prononcée sur l'un des aspects, renonce à examiner l'autre dans le cas d'espèce . 48 (TRADUCTION) THE FACTS The applicant is a Belgian national born at Liège in 1939 and residing in Brussels. He is a doctor of medicine . In the proceedings belote the Commission he is represented by Mr . Pierre Lambert and Mr. Georges-Henri Beauthier, lawyers practising in Brusscls . The facts of the case as submitted by the parties may be summarised as follows . The applicant was accused by the Medical Association ("Ordre des médecins") of Brabant province of failure to observe medical ethics and to uphold the reputation, discretion and integrity of its members in that he had : - abetted drug abuse by patients to whom he issued prescriptions for the drug "Burgodin " without having had any real contact with them ; - failed tu keep a systematic check on the treatment prescribed - failed to draw up the patients ' case history ; - practised the a rt of healing on a commercial basis . In accordante with medical ethics, the Brabant Provincial Council of the Association had issued a series of publications (bulletins of the Brabant Medical Association) in 1976, 1980 and 1982 laying down the guidelines to be complied with by practitioners treating drug addiction . Disciplinary action was taken against the applicant in 1982 in response to the anxiely expressed in varions qua rters following the issue of a large number of prescriptions for the proprietary drug Burgodin , based on Bezitramide , a narcotic classified under No. 14 (c) in Art icle 1 of the Royal Decree of 31 December 1930. The competent authorities (Pharmaceutical Inspectorate, French-language Medical Board of Brabant Province) were especially concerned by the fact that most 56 of the prescriptions were made out to drug addicts from Paris and the surrounding ares who, having obtained this narcotic in a Brussels pharmacy, returned to their country to consume or market the drug and thereby circumvented the French legislation prohibiting Bezitramide . This state of affairs prompted articles in several Belgian and foreign newspapers alluding tu a "legal drug traffic", "a medical enquiry into the dealings of Dr. X" who was incriminated by the press in Paris, and a Brussels doctor's reply to accusations attributing "the basis of a drug traffic" tu him . The incriminated doctor is in tact the applicant, against whom action was taken by the Medical Association . On 19 October 1982 the Brabant Provincial Council of the Association gave a decision imposing on the applicant a six-month suspension of his right tu practice medicine. The applicant was informed of the decision on 26 October 1982 and lodged an appeal . On 3 May 1983 1983 the French- language Appeals Council of the Association gave a decision against the applicant in absentia , overruling the earlier decision and directing that he be struck off the register of the Association, a heavier penalty than the one under appeal, notwithstanding that fora variety of reasons the applicant was not notified of the hearing of 3 May 1983 until that morning , and duit the Appeals Council dismissed the request for an adjournment made in due form on 18 April by one of the applicant's lawyers on the ground that he would be abroad on the day of the hearing . The applicant was informed of the decision taken in absentia by registered letter dated 4 May 1983 . He lodged an objection which the Appeals Council declared admissible but ill-founded . It dismissed the applicant's objection and ordered that he be struck off the register by decision of 22 November 1983 . The applicant appealed against the decision to the Court of Cassation, relying on Article 6 para . 1 of the Convention, Article 107 of the Constitution and the general legal principle inferred from the observance of the rights of the defence and from the general principle in law, expressed in Article 202 of the Code of Criminal Procedure, to the effect that the position of a person facing a criminal charge cannot be made worse where he alone bas appealed . The Court of Cassation dismissed the appeal in a decision of 13 September 1984. The Court of Cassation, in reply tu the applicant's argument under Article 6 para. 1 of the Convention, held that "the mere fast that a disciplinary authority is totally or partially made up of elected members who engage in the same or a similar occupation or hold the same professional qualification as the persons tried by tha t 57 authority dues not suffice to inter thai if is net independent or impartial, particularly within the meaning of Article 6 para . 1 of the Convention for the Protection of Humait Rights and Fondamental Freedoms" . The Court of Cassation holds that in the final analysis Article 25 para . 4 of Royal Decree No. 79 of 10 November 1967, which provides that the Appeals Council may decide by a two-thirds majority In increase the penalty ordered by the Provincial Council , -is net incompatible with the requirements of a fair trial set forth in Article 6 para. I of the Convention ; Whereas the ride that the position of a person facing a criminal charge cannot be made worse where he alone bas appealed is founded on Article 202 of the Code of Criminal Procedure and is inapplicable to the subject-matter governed by Royal Decree No . 79 of 10 November 1967 ; Whereas the decision appealed against, which was given in accordance with Article 25 para. 4 of that Decree, therefore infringes neither the aforesaid Convention nor the principles invoked by the appellant . . .". The applicant was also prosecutcd on criminal charges . The Brussels Criminal Court, in a judgment of 28 March 1985, sentenced him to four years in prison and a fine . The applicant and the prosecution appealed, and the Brussels Court of Appeal, in a decision of 7 November 1985, imposer] on the applicant a single penalty of three years in prison, two-thirds of this terni being suspended for five years subject to withdrawal of the rights set forth in Article 31 (I), (3), (4) and (5) of the Criminal Code and disqualification from practising medicine for life . The applicant did not appeal Io the Court of Cassation . COMPLAINTS The applicant alleges that Article 6 para . I of the Convention was infringed by the disciplinary procedure belote the Medical Association bodies . He claims that his case was not heard by an independent and impartial tribunal in that, having before if his appeal alone, the Appeals Council followed the recommendalions made by the Provincial Council and aggravated the penalty by ordering him to be struck off the register . The Appeals Council does not meet the requirements of an independent and impartial tribunal under Article 6 in that it consisted of a majority of doctors (four law officers, one presiding, and rive doctors) elected by the provincial councils and eligible for re-election, and also in that if relied on an investigation conducted by the Bureau of the Provincial Council - composed of doctors apart from the assessor - in determining a charge laid by the Provincial Council (composed only of doctors) and in determining the ethical rules adapted by the same council, so that the Council acted successively as rule-making authority, prosecuting party and judge . 58 Furthermore, under the ternis of Article 6 para. 1, proceedings must comply with the rights of the defence and with the general principle in law tu the effect that the position of a person facing a criminal charge cannot be made worse where he alcyne bas appealed . This principle is applicable to disciplinary cases, ai al] events where the disciplinary offence charged also constitutes an offense under entourai law, such as abetling drug abuse . If follows thai the Appeals Council, hearing the case solcly on an appeal by the applicant . could not aggravate the penalty imposed by the Provincial Council without disregarding Article 6 para . I and the general principles of law, and consequently could not apply Article 25 para . 4 of Royal Decree No . 79 of 10 November 1967 without violating Article 6 of the Convention . THE LAW The applicant submits two complairais based on Article 6 para . I of the Convention . These relate solely to the proceedings against him belote the bodies of the Medical Association, which led tu his being struck off the Associations register . The applicant Grstly complains that his case was not heard by an "independent" and "impartial" tribunal in Chat the Association's Appeals Council which ordered his disqualification front practising medicine was composed of a majurily of doctors . He fardier contends that under the ferais of the aforesaid provision of the Convention . proceedings must respect the rights of the defence and the general principle in law Chat the position of a person facing a criminal charge cannot be made worse where lie alone bas appealed . The applicant considers this principle to be applicable tri disciplinary proceedings where. as in the prescrit case, the disciplinary offence charged also constitutes an offence under eriminal law. The Appeals Couneil should therefore have applicd Article 202 of the Code of Criminal Procedure and not the special law applying to medieal discipline, namely Article 25 para . 4 of Royal Decree No . 79 of 10 November 1987, which is less favourable as the Appeals Council may, by a two-thirds majority, aggravate the penalty imposed by the Provincial Council . 1 . The Commission is firstly required to decide as to the applicahility of Article 6 para. I of the Convention. It observes that the applicant's allegation that the Medical Association's bodies, in particular ils Appeals Council, lacked independence and impartiality rescmhles the allegation made in cases which have given rise to two judgments by the European Court of Human Rights, namely the judgment of 23 June 1981 in the case of Le Compte, Van Leuven and De Meyere (Series A no . 43) and the judgment of 10 February 1983 in the case of Albert and Le Compte (Series A no . 58) . 59 As to the question whether the dispute ("contestation ") at issue belote the disciplinary bodies involved the determination of a civil right, the Commission, confirming its constant case-law, endorses the Cou rt's opinion in the two aforementioned judgments that "the right to continue tu practise constituted , in the case of the applicants , a private right and thus a civil right within the meaning of Article 6 para. 1, notwithstanding the specific character of the medical profession . . . and the special duties incombent on its members" . Considering Chat the dispute ("contestation") over the devisions taken against the applicant concerned a "civil right", the applicant was entitled to have fois case examined by a "tribunal" satisfying the conditions laid down in Article 6 para . I . Il is truc Chat the applicant' s contention is that the Appeals Council of the Medical Association, in imposing on him the penal ty of being struck off the register of the Association , was required tu determine a "criminal charge ". In aggravating the penalty imposed by the Provincial Council, il allegedly infringed A rticle 6 para. 1, in particular the rights of the defence and the general principle in law that the position of a person facing a criminal charge cannot be made worse where hc alerte bas appealed. In this connection the Commission must , however, recall the case-law of the Court, which in the aforementioned Albert and Le Compte judgment (para . 30) held Chat the two aspects, civil and criminal , of Article 6 para. 1 need not be mutually exclusive, and Chat it did no( consider il necessary to decide whether, in the specific circumstances , there was a "criminal charge" because paragraph I of Article 6 applies in civil matters as well as in the criminal sphere , case. The Commission considers Chat il must adopt the saure approach in the presen t 2 . The Commission is therefore required to examine the applicant' s first complaint under Article 6 para . 1 of the Convention , namely the question whether lois case was heard by an "independent and impartial" tribunal within the meaning of Article 6 para. I . This complaint is based on the established fact Chat in the appeal proceedings the Appeals Council was composed of a majority of five doctors and of four law officers, one of whom was presiding. The applicant, having regard to the Cou rt 's case-law, in particular the aforementioned Le Compte , Van Leuven and De Meyere judgment (para . 58), inters that the Appeals Council dues not meet the conditions of independence and impartiality laid down by Article 6 para . I . In Chat judgment , the Court fourni that the -independence" of the Appeals Council could not be contested and added Chat "il is composed of exactly the same number of medical practitioners and members of the judiciary and one of the latter , 60 designated by the Crown , always aces as Chairman and has a casting vote . Besides, the dotation of a . . . member's term of office (six years) provides a further guarantec in tins respect .. .'' . As te the "impartiality" of the Appeals Council, il is truc that the Commission expressed the opinion that it did not , in the particular circumstances, constitute an impartial tribunal : whilst the légal members were to he deemed neutral, the medical members had, on the other hand, tu be considered as unfavourable tu the applicants sine they had interests very close to those of one of the parties to the proceedings. The Court, however, did not agree wilh this opinion regarding the Council's composition ; it held that "the presence . . . of judges making up half the membership, including the Chairman with a casting vote . . ., provides a definite assurance of impartiality, and the method of élection of the medical members cannot suffice to bear out a charge of Nia s In the second judgment given in the Albert and Le Compte case (para . 32), the Court stated : "As for impartiality judged from an objective and organisational point of view . . . . therc is nothing in the material submitted tu prompt the Court te call the motter into question . In particular, the manner of appointment of the medical practitioners sining on the Appeals Councils provides no cause for treating those individuals as biased : although elected by the Provincial Councils .. ., they act net as representatives of the Ordre des médecins but - like the légal members nominated hy the C'rown - in a persona) capacity" . The Commission agrees with the Government that while it initially viewed the presence of doctors in the Associations 's disciplinary hoches as possibly raising an issue, Ibis was in the context of the pa rticular circumslances of the Le Compte, Van Leuvcn and De Meyere case, namely the attitude of the applicants , who contested the very lawfulness of the Médical Association . As has been noted, the Court did not shore this opinion . It must be observed that in the present case there are no such circumstances . Action was taken against the applicant for failure to observe medical ethics and to uphold the réputation , discretion and integrity of the members of the Médical Association in that he had "abeued drug abuse " by patients , also an offence under criminal law for which the applicant was suhsequently prosecuted and eonvicted by the Brussels Criminal Court and Court of Appeal . The Commission further stresses that there is nothing in the material submitted to justitÿ the conclusion chat the lack of strict parity between doctors and légal officers in the present case would bave rendered the disciplinary body "biased" contrary te the requirements of Article 6 para . 1 . Indeed, as the Government point out, the Court dues no( require parity hetween legal off cers and doctors to be observed al al] Limes in the Appeals Council, in that the doctors do not sit as representatives of the Médical Association but in a personal 61 capacity, as do the legal officers whose presence constitutes a further guarantee . In this respect , the Commission observes front the decision of 13 September 1984 given in the present case by the Court of Cassation Chat the Appeals Council decided by a two-thirds majority of members present, under a procedure which, as such, is not the subject of any specific complaint by the applicant . The applicant bas further argued that the Appeals Council lacks independence and impartiality in reaching its decision on the basic- of an investigation conducted by the Bureau of the Provincial Council, which acted successively as rule-making authority, prosecuting party and judge . The Commission considers that, just as a court cannot be criticised for basing its decision on evidence submitted to it by the prosecution, the investigating judge or the parties themselves, neither was it reprehensible for the Appeals Council of the Association to base its decision on the proceedings of the Provincial Council, provided of course that the necessary guarantees of independence and impartiality are afforded by the Appeals Council and that the case receives a fair hearing, which was so in the present proceedings . The Commission thus arrives at the conclusion that in the circumstances the applicant 's case received a fair hearing by an "independent and impartial" tribunal within the meaning of Article 6 para. 1 of the Convention . Il follows that this part of the application is manifestly ill-founded and must be rejected in accordante with Article 27 para . 2 of the Convention . 3 . The Commission is also required to examine the second complaint based on Article 6 para . 1 of the Convention, concerning the fact that the Association's Appeals Council, hearing the case solely on an appeal by the applicant, imposed on him the penalty of disqualification frotta practising medicine, contrary to the general principle in law prohibiting the aggravation of the penalty . The Commission considers that such a complaint may be regarded as being an allegation of an infringement of the principle of fairness of proceedings under Article 6 para . 1 of the Convention . It nevertheless considers, on the strength of the evidence with which il was provided in the context of the present case, that in imposing the penalty complained of the Appeals Council did ont infringe any rights of which the applicant might avail himself in respect of Article 6 para . 1 and that consequently no violation of the Convention can be disclosed . It follows that this part of the application is manifestly ill-founded and must also be rejected in accordante with Article 26 para . 2 of the Convention . For these remous, the Commission DECLARES THE APPLICATION INADMISSIBLE . 62