CASE OF KRASKA v. SWITZERLAND
No violation of Art. 6-1
R. Pekkanen
6. Mr Martin Kraska is a Swiss national and lives in Zurich. He obtained his diploma in medicine in 1981 and has since practised mostly as an assistant doctor (Assistenzarzt), for which activity he does not require an authorisation in the Canton of Zurich. 7. On 19 October 1982 he received the authorisation to practise independently in the canton. The authorisation was, however, withdrawn by the Health Authority (Gesundheitsdirektion) on 26 April 1983 on the ground that, having moved to another canton, he had not used it. 8. The applicant lodged an administrative appeal (Rekurs) which the Cantonal Government (Regierungsrat) of Zurich rejected on 17 August 1983 for the following reasons: the possibility that a new authorisation would be granted as soon as he returned to Zurich was not sufficient to confer on the applicant a legally protected interest; in any event the authorisation in question was not of general validity, but related to a specific activity; as it was, Mr Kraska no longer lived in the canton. 9. From 6 August to 17 September 1984 the applicant worked as an assistant doctor in the emergency service of the District of Zurich Medical Association (Ärztlicher Notfalldienst des Ärzteverbandes des Bezirks Zurich). 10. On 28 August 1984 he fetched a partially paralysed patient from a private old peoples’ home and took her back to her flat, where he treated her. Shortly afterwards he drew up a bill on an emergency service form for 7,447.80 Swiss francs and sent it to the guardian (gesetzlicher Vertreter) of the patient, who had been placed in guardianship on a temporary basis on 13 September 1984. The sum in question was to be paid directly into the applicant’s post office account and not that of the medical association. A prosecution was subsequently brought against Mr Kraska for fraud and various infringements of the Zurich Public Health Act 1962; in particular it was alleged that he had treated the patient without being in possession of an authorisation to practise medicine independently as was required under section 7 para. 1 (a) of that Act. The Zurich District Court (Bezirksgericht) acquitted him on 13 January 1986, finding inter alia that the indictment had not indicated in sufficiently specific terms the medical treatment involved. 11. In the meantime, on 31 January 1985, the applicant had attempted to obtain a new authorisation. On 11 September 1985 the Zurich Health Authority had refused his request on the ground that he was not "trustworthy" within the meaning of section 8 para. 1 of the Public Health Act. On 1 October 1986 the Zurich Cantonal Government dismissed the applicant’s appeal. It took the view that he had infringed section 7 para. 1 (a) of the Act by submitting a bill for the treatment in question and that his acquittal by the District Court made no difference in this respect. The Cantonal Government noted in particular that in his bill the applicant had himself classified the treatment as medical acts. 12. In an appeal (Beschwerde) to the Zurich Administrative Court (Verwaltungsgericht) the applicant again sought the authorisation to practise his profession independently. The court dismissed his appeal on 11 March 1987. It also directed that he should wait until the beginning of 1988 before re-applying. 13. By a memorial of seventy-three pages Mr Kraska’s lawyer lodged with the Federal Court (Bundesgericht) a public-law appeal (staatsrechtliche Beschwerde), on which five judges deliberated at a public hearing on 22 October 1987 (section 17 para. 1 of the Federal Courts Act). The applicant’s lawyer was present in the courtroom, but was not allowed to address the court. Judge X submitted his report; Judge Y, who did not in fact have the status of co-rapporteur attributed to him at paragraph 68 of the Commission’s opinion, stated that he was unable to accept the conclusions of the report and proposed a solution contrary thereto. During the discussion which followed, a third judge put forward a counter proposal, which was adopted by the majority. In a letter to his client, the lawyer described the course of the deliberations. According to him, Judge X had proposed that the applicant’s public-law appeal should be allowed in full and that he should be granted the authorisation to practise. Judge Y had stated that he had been irritated by the length of the memorial, of which he had been able to read only thirty or so pages, and had complained that it had not been possible for him to study the file because, owing to an error on the part of the registry, he had not received it until a day before the hearing; he had then called for the dismissal of the appeal, basing his view exclusively on the above-mentioned decisions of 11 September 1985, 1 October 1986 and 11 March 1987 (see paragraphs 11-12 above). 14. The Federal Court gave judgment on the same day. By four votes to one, that of Judge X, it quashed the decision in so far as it imposed a waiting period on the applicant but dismissed the remainder of the appeal. It first declared a number of the applicant’s complaints inadmissible. It stated, nevertheless, that in cases of this kind, in the event of the appeal’s succeeding, it could by way of exception not only quash the contested decision, but also grant the authorisation sought, if all the other conditions were satisfied. The Federal Court then noted that, according to its case-law, the right to freedom of commerce and industry, guaranteed by Article 31 of the Federal Constitution, embraced the right to practise medicine on a professional basis. Having examined the criticisms levelled by the health authorities, it formed the opinion that at least two of them appeared material to assessing the applicant’s honesty: he had carried out a medical act without the necessary authorisation; in addition, the bill relating thereto dealt with both medical and non-medical acts and he had drawn it up on an emergency service form, thereby giving the impression that it concerned only the former. 15. On 8 December 1987 the Health Authority of the Canton of Zurich granted Mr Kraska’s third application for a new authorisation. 16. On 6 November 1987 Mr Kraska requested the Federal Court to re-examine its judgment of 22 October 1987, complaining that it had given its decision without sufficient knowledge of the file. His application was dismissed on 14 March 1988 on the ground, inter alia, that there was no legal basis for reopening the proceedings. The Federal Court summarised the contested deliberations as follows: "On the occasion of the public deliberations one judge expressed his dissatisfaction that the documents had not been available for a sufficiently long time (they had been sent first to a substitute judge); he had therefore been able to read thoroughly only the first thirty-five pages of the - much too long - appeal memorial which comprised seventy-three pages." 17. Mr Kraska subsequently filed three other applications for the reopening of the proceedings in the Federal Court; they were dismissed on 5 May and 23 August 1988 and on 6 June 1989.