CASE OF GAUTRIN AND OTHERS v. FRANCE
Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 35-1 - Effective domestic remedy);Violation of Article 6 - Right to a fair trial (Article 6 - Disciplinary proceedings;Article 6-1 - Public hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Disciplinary proceedings;Article 6-1 - Impartial tribunal);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
C. Russo
7. Associations called “SOS Médecins”, whose object is to provide emergency medical services on call to patients, have been set up in each département; they have formed regional associations which in turn are part of a national association known as “SOS Médecins, France”. The applicants, who are medical practitioners in the Ile-de-France region, are all members of this organisation. 8. A number of doctors’ unions and département councils of the ordre des médecins (Medical Association) lodged complaints with the professional disciplinary bodies against the members of those associations. They maintained, inter alia, that by using a flashing blue light without permission from the authorities and displaying the name “SOS Médecins” on their vehicles, in telephone directories and in advertising brochures, the members of the associations were contravening Article 23 of the Code of Professional Conduct, which prohibited advertising. 9. On 2 March 1989 the National Union of Duty Doctors lodged a complaint against each of the applicants with the regional council of the Ile-de-France ordre des médecins. The French Federation of Paris General Practitioners did likewise on 20 March 1989. It was alleged that the applicants had contravened Article 23 of the Code of Professional Conduct by displaying the name “SOS Médecins” on their vehicles and prescriptions. 10. On 28 January 1990 the regional council, composed of Dr Fenoll, chairman, and Dr Barkatz, Dr Bernard, Dr Boissin, Dr Castello, Dr Delamarche, Dr Gasch, Dr Groene-Richert, Dr Manheulle, Dr Pommey and Dr Sorrel-Dejerine, members, held that there had been a breach of Article 23 of the Code of Professional Conduct and suspended Dr Gautrin and Dr Mynard from practising medicine for two months and Dr Fillion and ninety-six other doctors for one month; the remaining six applicants received a reprimand. 11. The applicants appealed against those decisions to the disciplinary section of the National Council of the ordre des médecins. 12. On 25 March 1992 that section, chaired by Mr Coudurier, honorary member of the Conseil d’Etat, and composed of Dr Dusserre, Dr Jung, Dr Klepping, Dr Vergeylen, Dr Gatel and Dr Gilbert, members, upheld the decisions of the regional council as to the finding that there had been a breach of the Code of Professional Conduct, but reduced the penalties: Dr Gautrin and Dr Mynard were suspended from practising medicine for fifteen days, the doctors who had received a month’s suspension were given a reprimand and those who had been reprimanded were given a warning only. The applicants were informed of the decision on 7 July 1992. They did not appeal to the Conseil d’Etat. 13. Article 23 of the Code of Professional Conduct provided: “Medicine must not be practised as if it were a trade. Doctors shall not use any form of advertising or publicity, whether direct or indirect. No medical exhibition shall be held or demonstration performed unless their purpose is exclusively scientific or educational.” 14. The Code of Professional Conduct was reformed by Decree no. 951000 of 6 September 1995. It now provides that any doctor participating in a duty, emergency or on-call doctor scheme “... shall be permitted, when carrying out his task, to affix a removable badge to his vehicle bearing the words ‘doctor on emergency call’, but no others...” and that the badge must be removed “... as soon as his role in the emergency is over...” (Article 78). The code also now sets out, among other things, the information which doctors are allowed to reproduce on their prescriptions and in directories available to the public (Articles 79–80). 15. It is compulsory for all doctors entitled to practise their profession in France to belong to the ordre national des médecins. This body ensures, among other things, that the principles of morality, probity and dedication essential to the practice of medicine are upheld and that all its members fulfil their professional duties and comply with the rules laid down in the Code of Professional Conduct. It discharges this function through département councils, regional councils and the National Council of the ordre (Articles 381 and 382 of the Public Health Code). 16. The regional councils exercise disciplinary jurisdiction at first instance within the ordre des médecins. Cases may be brought before them by, among others, the département councils, and doctors’ unions and individual registered medical practitioners within their territorial jurisdiction (Article L. 417 of the Public Health Code). Regional councils may only deliberate validly if at least five of their members are present. Decisions are taken on a majority vote and must be reasoned (Articles 15 and 16 of Decree no. 48-1671 of 26 October 1948, as amended). 17. The regional council of the ordre des médecins for the Paris area is made up of twenty-six full members divided into two chambers and of thirteen substitute members; they are all elected by members of the département councils (Articles L. 398 et seq.). Each chamber elects a chairman from among its members (Article L. 401). 18. The National Council of the ordre des médecins is composed of thirty-eight members, thirty-two of whom are directly elected by the département councils. 19. After each election of a proportion of its members (every two years) the National Council elects eight of its thirty-eight members to constitute a disciplinary section – chaired by a senior member of the Conseil d'Etat – with jurisdiction to hear appeals (Articles L. 404 to 408 and L. 411 of the Public Health Code). Substitute members are elected in the same way as full members (Article 21 of Decree no. 48-1671 of 26 October 1948, as amended, concerning, inter alia, the functioning of the disciplinary section). The disciplinary section may only deliberate validly if, in addition to its chairman, at least four of its members are present. Where the number of members present is an even number, the youngest practitioner must withdraw (Article 24, first paragraph, of the Decree of 26 October 1948, as amended). Appeals have, in principle, suspensive effect (Article L. 411 of the Public Health Code). 20. An appeal on points of law against decisions of the disciplinary section lies to the Conseil d'Etat (Article 22 of the Decree of 26 October 1948, as amended, and Article L. 411 of the Public Health Code) “as provided in ordinary administrative law” (Article L. 411 in fine of the Public Heath Code). Section 11 – which came into force on 1 January 1989 – of Law no. 871127 of 31 December 1987 reforming administrative proceedings provides: “... If it quashes a decision by an administrative tribunal of last instance, the Conseil d'Etat may either remit the case to the same tribunal, which shall, unless the nature of the tribunal makes it impossible, be differently constituted, or remit the case to another tribunal of the same type, or determine the merits of the case itself where the interests of proper administration of justice warrant it. Where a second appeal on points of law is brought in a case, the Conseil d'Etat shall give a final ruling on it.” 21. At the time the events in the instant case occurred, the Conseil d’Etat held, following its settled case-law (extracts from its judgment of 29 October 1990 in the case of Diennet): “...the provisions of Article 6 § 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms are not applicable to disciplinary tribunals, which do not hear criminal proceedings and do not determine civil rights and obligations. Mr Diennet accordingly cannot challenge the decision appealed against on the grounds that it contravened the provisions of Article 6 § 1 of the aforementioned Convention relating to the holding of hearings in public and the impartiality of tribunals. ... although section 11 of the Law of 31 December 1987 provides that a tribunal to which a case has been remitted by the Conseil d'Etat must, unless the nature of the tribunal makes it impossible, be differently constituted from the one that gave the original decision, the disciplinary section of the ordre des médecins was, having regard to its nature, entitled, for the purpose of hearing the case remitted to it by the Conseil d'Etat acting in its judicial capacity in a decision of 15 January 1988, to be constituted as it had been on 30 January 1985, when it had given its first ruling. The grounds of appeal based on an infringement of the principle of the impartiality of tribunals and on the statutory provisions previously cited must therefore fail. ...” 22. The following penalties may be imposed on doctors found guilty of disciplinary offences: a warning; a reprimand; temporary or permanent disqualification from performing some or all of the medical duties carried out for or remunerated by the State, départements, municipalities, public corporations or private corporations promoting the public interest, or the medical duties carried out pursuant to welfare legislation; temporary disqualification from practising medicine (for a maximum of three years); and striking off the register of the ordre. The first two penalties also entail loss of the right to be a member of a département council, a regional council or the National Council of the ordre for three years; the other penalties entail permanent loss of that right. A doctor who has been struck off cannot have his name entered in another register (Article L. 423 of the Public Health Code). 23. A doctor against whom proceedings are brought may exercise a right of challenge before a regional council or the National Council, as laid down in Articles 341 to 355 of the New Code of Civil Procedure (Article L. 421 of the Public Health Code). Article 341 of the New Code of Civil Procedure provides that a judge may be challenged: “... 1. if he or his spouse has a personal interest in the dispute; 2. if he or his spouse is a creditor, debtor, heir presumptive or donee of one of the parties; 3. if he or his spouse is a blood relative or a relative by marriage of one of the parties or of the spouse of one of the parties up to the fourth degree inclusive; 4. if there have been or are still legal proceedings pending between him or his spouse and one of the parties or the spouse of one of the parties; 5. if the case has earlier come before him as a judge or arbitrator or if he has advised one of the parties; 6. if the judge or his spouse is responsible for administering the property of one of the parties; 7. if there is a relationship of subordination between the judge or his spouse and one of the parties or the spouse of one of the parties; 8. if it is common knowledge that friendship or enmity subsists between the judge and one of the parties; ...” A party wishing to challenge a judge will be estopped from doing so unless he makes his challenge as soon as he becomes aware that a ground exists. “Under no circumstances” may a challenge be made after the hearing (Article 342 of the New Code of Civil Procedure). The challenge must “clearly set out the grounds and be accompanied by supporting evidence” (Article 344). On receipt of a challenge, the judge concerned shall “withdraw” until the question has been decided (Article 346). He has eight days in which to inform the court in writing whether he accedes to the request that he stand down – in which eventuality he shall be replaced immediately – or, if he does not propose to stand down, of the reasons for his resisting the challenge (Articles 347 and 348); in the latter eventuality, or if he does not reply, the challenge is “decided as soon as possible by a court of appeal or, if made against a member of a lay tribunal, by the president of the court of appeal, from whose decision no appeal shall lie” (Article 349). If the challenge is upheld, the judge is replaced (Article 352); if it is rejected, the challenger may be ordered to pay a civil fine of between 100 and 10,000 French francs without prejudice to any claim for damages that may be made (Article 353). To prevent an estoppel arising, challenges against more than one judge shall be made together unless a ground for challenge subsequently comes to light (Article 355). A challenge against all the judges of a chamber or a court of appeal is equivalent to an application for transfer of the case to another tribunal of the same type on grounds of bias (Rouen Court of Appeal, 12 July 1973, Gazette du Palais 1974, 43). No such application may be made in respect of the disciplinary section of the National Council of the ordre des médecins as there is no other body of that type to whom the case can be transferred (Conseil d’Etat, 3 May 1957, Sieur Nemegyei, Recueil, pp. 279–80). 24. Article 18 of Decree no. 48-1671 of 26 October 1948, as amended, provides, inter alia: “Members of regional councils may be challenged for the reasons set out in Article [L.731-1 of the Judicature Code]. Challenges shall be made at least three days before the hearing starts. Members of the council who are related by blood or marriage up to the fourth degree inclusive to another member of the council or to the doctor ... concerned, members of regional councils who individually or as part of a group have occupational interests in common with each other or with the practitioner concerned, and any member who initiated the complaint that led to the disciplinary proceedings shall be precluded from hearing the challenge.” The grounds for challenge set out in Article L. 731-1 of the Judicature Code are the same as those set out in Article 341 of the New Code of Civil Procedure. 25. Article 15, second paragraph, and Article 26, seventh paragraph, of Decree no. 48-1671 of 26 October 1948, as amended, provided: “Hearings shall not be held in public and the deliberations shall remain secret.” While the decisions of the disciplinary bodies of the ordre des médecins contained the names of the members who were present, they were recorded in a special register to which third parties did not have access and were not published. They were notified to certain individuals and institutions only (Articles 17 and 28 of the decree). 26. Those rules were amended by Decree no. 93-181 of 5 February 1993. Hearings before a body of the ordre sitting to determine disciplinary charges are now held in public. However, the chairman of the body in question may, of his own motion or on an application by one of the parties or by the person whose complaint has led to the case being brought before a regional council, exclude the public from all or part of the hearing in the interests of public order or where respect for private life or medical confidentiality so justifies (Articles 13, 15 and 26 of the Decree of 26 October 1948, as amended by the Decree of 5 February 1993). Decisions are now made public, but the bodies in question may decide not to include in the certified copies any details – such as surnames – which might be incompatible with respect for private life or medical confidentiality (Articles 13 and 28 of the Decree of 26 October 1948, as amended by the Decree of 5 February 1993).