POPOV and OTHERS, VAKARELOVA, MARKOV and BANKOV v. BULGARIA
Inadmissible
Christos Rozakis
All applicants are practising medical doctors. Some of them are members of the Bulgarian Doctors’ Union („Български лекарски съюз“ – “BDU”), established in July 1998 by the Professional Organisations of Doctors and Dentists Act („Закон за съсловните организации на лекарите и стоматолозите“ – “PODDA” or “Act”), while some have refused to become such members. The applicants in the first application (no. 48047/99), Mr Toma Dimitrov Popov, Mr Marcel Haim Levy, Mr Ivan Yordanov Chalakov and Mr Velko Vladimirov Kalaydjiev, are Bulgarian nationals who were born in 1949, 1960, 1947 and 1964 respectively and live in Sofia. They were represented before the Court by Ms Z. Kalaydjieva and Ms N. Sedefova, lawyers practising in Sofia. The applicant in the second application (no. 48961/99), Ms Mariana Ilieva Vakarelova, is a Bulgarian national who was born in 1959 and lives in Sofia. She was represented before the Court by Ms V. Terzieva and Mr Y. Grozev, lawyers practising in Sofia. The applicant in the third application (no. 50786/99), Mr Nikolai Markov Markov, is a Bulgarian national who was born in 1952 and lives in Sofia. He was represented before the Court by Mr E. Nikolov, a lawyer practising in Sofia. The applicant in the fourth application (no. 50792/99), Mr Georgi Hristov Bankov, is a Bulgarian national who was born in 1967 and lives in Veliko Tarnovo. He was represented before the Court by Ms V. Terzieva and Mr Y. Grozev, lawyers practising in Sofia. The BDU was originally established in 1901 as a professional association of medical doctors. During World War II membership in the union became compulsory. After the war the union was liquidated. Similarly, the Union of Dentists in Bulgaria („Съюз на стоматолозите в България“ – “UDB”) was established in 1905 as a professional association of dentists and ceased to exist after World War II. In 1991 an organisation named BDU was founded by a group of medical doctors. It was registered as a notforprofit association under the Persons and Family Act (the statute governing this type of organisations). The association was active on the whole territory of Bulgaria and had numerous members. The applicant in application no. 48961/99, Ms Vakarelova, was one of its members. Between 1991 and 1993 she chaired the regional section of the BDU in the Fourteenth Regional Hospital. On 8 July 1998 the Bulgarian Parliament adopted PODDA. The Act was published in the State Gazette on 21 July 1998 and entered into force on 25 July 1998. It established two organisations: the BDU and the UDB, and provided, in paragraph 9 of its transitional and concluding provisions, that the two organisations were the respective successors of the BDU of 1901 and the UDB of 1905. By virtue of PODDA all practising medical doctors and dentists in the country were obliged to become members of, respectively, the newly established BDU and UDB. Those medical doctors and dentists who were not practising could, but were not obliged to, become members. PODDA introduced amendments to the Labour Code and Criminal Code whereby a medical doctor or a dentist working under an employment contract who had not become a member of the respective union was liable to be dismissed from work without notice and became criminally liable if he or she continued to practise. In August 1998 sixty Members of Parliament requested the Constitutional Court to declare PODDA unconstitutional. They argued that compulsory membership in the BDU and the UDB went against Article 44 of the Constitution, enshrining, inter alia, negative freedom of association. They further submitted that the Act infringed Article 48 of the Constitution, guaranteeing the right to work, and also the principle that government functions should not be entrusted to public organisations without their express consent. They also maintained that the Act created undue privileges for the two unions to the detriment of other organisations and that it regulated matters which should have been left to the discretion of the unions’ governing bodies. Finally, the MPs asserted that section 34(1)(7) of PODDA was vague and could lead to unjustified gathering of irrelevant information about BDU and UDB members. The Constitutional Court gave judgment on 11 November 1998. In respect of the allegation that PODDA infringed the medical doctors’ and dentists’ negative freedom of association it held as follows: “... Through PODDA the legislature regulated the structure, the organisation and the activities of the professional organisations of the medical doctors and the dentists, the conditions for practising medicine and odontology, and the responsibility for breaches of professional ethics. According to section 1(2) of the Act the professional organisation of medical doctors is the BDU, and that of dentists – the UDB. Section 3(1) provides that all medical doctors and dentists who practise their profession must be members of the BDU or the UDB, respectively. The [Members of Parliament] who filed the request maintain that the above provisions contravene Article 12 § 1, Article 44 § 1 and Article 48 §§ 1 and 3 of the Constitution of the Republic of Bulgaria, as well as international treaties ... which ... are part of the domestic law of the country... It is submitted that by requiring all practising medical doctors and dentists to be members of the BDU and the UDB the Act infringes the constitutionally protected freedom of association (Article 44 of the Constitution), because it brings about an element of compulsion which is irreconcilable with that freedom. In addition, according to the request, the provisions of the challenged Act run counter to Article 48 §§ 1 and 3 of the Constitution of the Republic of Bulgaria, which proclaims on the one hand the citizens’ right to work and on the other – the obligation for the State to create the conditions for the realisation of that right. The Constitutional Court finds that these submissions and the arguments presented in support of the request are illfounded. I.1. PODDA does not contain a provision which excludes the right of other organisations, including professional and tradeunion type, founded by medical doctors and dentists, to exist alongside the BDU and the UDB. It does not proscribe the establishment of associations by medical doctors and dentists under the Persons and Family Act or another statute. Therefore, the Act does not run counter to Article 44 § 1 of the Constitution. It does not affect the constitutionally protected freedom of association, because that freedom pertains to privatelaw associations, including trade unions under Article 49 of the Constitution. This constitutionally recognised freedom includes not only the freedom to take up the initiative and to form an association, respectively to become a member of an existing one, but also the socalled “negative freedom”, i.e. the right to not become a member of an existing association. 2. PODDA does not lie on the plane of Article 44 § 1 of the Constitution. It is an Act which creates publiclaw corporations with compulsory membership of medical doctors and dentists. These corporations are endowed with certain publiclaw functions: to organise, control and discipline medical doctors and dentists. Accordingly, freedom of association, proclaimed by Article 44 § 1 of the Constitution, does not apply to them: they are created by statute and not through the free will of their members. The Constitutional Court considers that, when deciding on the applicability of Articles 12 and 44 of the Constitution to publiclaw corporations, it must have regard to the caselaw of the European Court of Human Rights and the interpretation of Article 11 § 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms [(“ECHR”)]. This provision corresponds to Article 44 § 1 of our Constitution. This is so, because [ECHR] is part of domestic law and, according to its Article 46, the judgments of the European Court of Human Rights [and the interpretations of the ECHR contained therein] are binding on all State bodies in the country. [In] a judgment of the European Court of Human Rights in Strasbourg of 27 May 1981, the issue [was] whether the compulsory membership of medical doctors in a publiclaw corporation – “Ordre des médecins” –, created by act of the king of Belgium, ran counter to Article 11 § 1 of the ECHR (which corresponds to Article 44 § 1 of our Constitution). That corporation’s aim was to protect the citizens’ health by exercising control over the practice of medicine. This function led to [the giving] a number of administrative powers to the “Ordre [des médecins]”, including the power to discipline the medical doctors registered with it. According to the unanimous judgment of the European Court of Human Rights, the corporation of Belgian medical doctors “Ordre [des médecins]” could not be considered as an association within the meaning of Article 11 of the ECHR and [compulsory membership in it] did not run counter to this Article. 3. It should be pointed out that a similar opinion was expressed by the German Federal Constitutional Court and by the prevailing German doctrine in respect of the various publiclaw corporations (the socalled “chambers”) which exist in Germany, such as: the lawyers’, notaries’, medical doctors’, dentists’, pharmacists’, handicraftsmen’s, etc. chambers. According to this opinion, the compulsory membership of the persons who practise the respective professions in these chambers does not contravene Article 9 § 1 of the Constitution of the Federal Republic of Germany which proclaims freedom of association, because that Article concerns the formation of notforprofit associations and of companies, which are of privatelaw character and thus do not fall in the category of publiclaw corporations. For this reasons these corporations [were] not [considered] unconstitutional... 4. In order to better understand the fundamental difference between a publiclaw corporation with compulsory membership of all persons who practise the respective profession and a voluntary privatelaw association, regard must be had to the European Court of Human Right’s judgment of 13 August 1981 in the case of Young, James and Webster [v. the United Kingdom, series A no. 44]. Its subjectmatter was an agreement for the compulsory membership of employees in a trade union. Since Article 11 § 1 of the ECHR (corresponding to Article 44 § 1 of our Constitution) applies to trade unions, the European Court in Strasbourg found in favour of the applicants, because it found that the freedom of association in trade unions could not be restricted through compulsory membership in a given trade union under the threat of dismissal from work of an employee who was not a member. The abovementioned judgments of the European Court of Human Rights draw a sharp distinction between publiclaw corporations, which have compulsory membership, and privatelaw associations, including trade unions. Article 11 § 1 of the ECHR, corresponding to Article 44 § 1 of our Constitution, applies only to privatelaw associations. The conclusion drawn by the Constitutional Court is that PODDA does not contravene Article 44 § 1 of the Constitution. 5. A decisive argument in support of this conclusion is Article 134 of the Constitution. Article 134 provides that the Bar is selfgoverning and provides for the adoption of a special statute on its organisation and activities. It is common knowledge that in many countries, and in our country even before the Constitution of 1991, the practising of the legal profession was subject to membership in the respective lawyers’ organisation, i.e. registration of the person wishing to practise as a lawyer in this organisation. It is therefore beyond question that the Bar is a telling example of a publiclaw corporation. These elements abound in our Bar Act [of 1991]. It is true that the Constitution does not expressly provide that the medical doctors’ and dentists’ unions should be corporations with publiclaw elements. But this is by no means necessary. The formation of various corporations with publiclaw elements is a matter of legislative discretion and is not dependent upon an express constitutional command. By its very nature the Constitution cannot and should not exhaustively enumerate the permissible forms of organisation. But when it regulates the Bar, it clearly indicates that organisations like it are compatible with the Constitution. Such an organisation is also the Notaries Chamber (see the Notaries Act [of 1996]). Such is also the Act challenged before the Court. 6. Through this Act the State performs its obligation under Article 52 § 3 of the Constitution to protect the citizens’ health and to provide them with highquality health care. By entrusting to medical doctors and dentists themselves the supervision of the two professions through corporations ran by them, the challenged Act manages to achieve in the most expedient manner the observance of the Professional Ethics Code and the Rules of Good Medical Practice, as well the regulation of the profession. Otherwise these functions would have to be entrusted to civil servants who would not be as competent and would cost considerable amounts of money to the State budget. This explains why the manner of organisation of medical doctors and dentists used by PODDA is also used in a number of European countries such as Austria, Belgium, Germany, Greece, Italy, Spain, Iceland, Poland, Slovenia, Croatia, the Czech Republic, [and] France. 7. PODDA is necessary also because of the inseverable link between it and the Health Security Act [of 1998 („Закон за здравното осигуряване“ – “HSA”)], because health insurance, guaranteed by Article 52 § 1 of the Constitution, may function only if the organisations of medical doctors and dentists created by PODDA exist. These organisations are parties to the National Framework Agreement concluded for the purpose of carrying out the activities under HSA. By section 55 of HSA, the National Framework Agreement regulates the conditions for and the manner of selecting medical service providers, the forms, conditions and manner in which medical services are dispensed, the amount, prices and method of payment for the medical services and drugs, as well as all other matters relating to health security. In other words, not a single health security activity could be carried out without this Agreement, which would deprive the citizens of the possibility to exercise their constitutionally guaranteed (Article 52 § 1 [of the Constitution]) right to health security. This convincingly demonstrates that not only does PODDA not contravene the Constitution, but that it is in fact mandated by the Constitution, so that the right guaranteed by Article 52 § 1 of the Constitution becomes a social reality. ...” As regards the allegation that section 34(1)(7) of PODDA was vague and allowed the gathering and retention of personal information, the Constitutional Court held: “... it is true that point 7 [of section 34(1)] has a blanket wording. However, it is sufficient to connect this provision with section 32 of [PODDA] in order to see that the term “other circumstances” means a number of facts set forth in section 32(3), without being expressly referred to in section 34(1) points 1 to 6, but which should nevertheless be entered in the register (e.g. length of service, indication that a doctor is a foreign national, [and] criminal record). If sections 32 and 34 are construed in connection with one another, the conclusion could and should be that “other circumstances” means exactly the facts mentioned in section 32. Thus, the blanket wording of point 7 of section 34(1) becomes clear and the alleged infringement of the rights set forth by Article 32 of the Constitution is excluded.” Five judges dissented from the Constitutional Court’s judgment, each writing an individual dissenting opinion. The dissenting judges were of the opinion, inter alia, that the BDU and the UDB could not be considered as falling outside the scope of Article 44 of the Constitution. The argument that they had been created by law was not persuasive because PODDA had merely branded two notforprofit associations “professional organisations” and had endowed them with certain publiclaw functions without declaring their liquidation or transformation or annulling the court’s decisions for their registration; it was doubtful whether this could be done by an Act of Parliament. The unions were essentially privatelaw associations, much like the one at issue in the case of Sigurður A. Sigurjónsson v. Iceland (judgment of 30 June 1993, Series A no. 264). Also, the notion of publiclaw functions was not unambiguous and could not serve as a basis for excluding the unions in question from the ambit of Article 44 of the Constitution. Indeed, by section 5(1) of PODDA, the two unions represented their members and protected their professional rights and interests, which were functions of a typical association or trade union. “1. Citizens’ associations shall serve for fulfilling and protecting citizens’ interests. 2. Citizens’ associations, including trade unions, may not pursue political goals or carry out political activities that are characteristic solely of political parties.” “The private life of the citizens shall be inviolable. Everyone shall have the right to be protected against illegal interference in his private or family life and against encroachments on his honour, dignity and reputation.” “1. Citizens may associate freely. 2. Organisations whose activity is directed against the sovereignty, the territorial integrity of the country [or] the unity of the nation, towards the incitement of racial, national, ethnical or religious enmity, towards the infringement of the citizens’ rights and freedoms, as well as organisations which seek to achieve their goals through violence, shall be prohibited.” The structure, the organisation and the activities of the professional organisations of the doctors and dentists – the BDU and the UDB –, are regulated by PODDA (section 1(1)). By section 3 of the Act, all practising medical doctors and dentists must be members of the respective union, whereas the membership of nonpractising doctors and dentists is optional. PODDA provides that the functions of the BDU and the UDB are as follows: a) to represent their members and protect their professional rights and interests; b) to represent their members as parties to the National Framework Agreement with the National Health Security Fund; c) to draft a Professional Ethics Code for medical doctors, respectively dentists, and to exercise control for compliance with that Code; d) to adopt, together with the National Health Insurance Fund, Rules for Good Medical Practice, to submit them for approval by the Minister of Health and to exercise control for compliance with them; e) to impose the sanctions which PODDA provides for medical malpractice; f) to draw up and keep a national and regional registers of their members; g) to participate in the organisation and conducting of professional qualification courses for doctors and dentists; h) to appoint representatives to the High Medical Council at the Ministry of Health; i) to express opinions on draft bills and regulations in the area of public health; j) to cooperate with other organisations and institutions in the country and abroad; k) to provide assistance to their members and their families in case they need it; l) to carry out any other activity which their statutes provide for (section 5). PODDA provides that the BDU and the UDB are legal persons and sets forth their structure and bodies. By section 18 of the Act, the BDU and the UDB have regional sections in all municipalities of the country. All practising medical doctors and dentists within a given municipality must be members of the regional section of the BDU or the UDB, respectively. The central bodies of the BDU and the UDB are their conventions (consisting of the elected representatives of their regional sections – section 8(1)), their managing boards (consisting of a chairperson, deputychairpersons, secretarygeneral and members – section 11), their control commissions (consisting of a chairperson and members – section 15(1)), and their professional ethics commissions (consisting of a chairperson and members – section 16(1)). The regional bodies of the unions are the general meetings of all practising doctors, respectively dentists, in the region (consisting of the delegates – at a one to ten rate – of all doctors or dentists within the given region – section 20(1)), the managing boards of the regional sections (consisting of a chairperson, deputychairpersons, secretarygeneral and members – section 23(1)), the control commissions of the regional sections (consisting of a chairperson and members – section 26(1)), and the professional ethics commissions of the regional sections (consisting of a chairperson and members – section 28(1)). The Act describes in detail the powers of each of the bodies. Under HSA, health coverage for all Bulgarian citizens and foreigners permanently residing on the territory of Bulgaria is provided by the National Health Security Fund („Национална здравноосигурителна каса“)(section 33 of HSA). The Fund, which receives monthly payments in respect of all persons with health coverage (section 40 of HSA), enters into a National Framework Agreement with the BDU and the UDB, as established by PODDA (section 54 of HSA). The National Framework Agreement sets forth, inter alia, the types of medical services to which all persons with health coverage are entitled, the manner of their dispensing, and the prices that the medical service providers (hospitals and medical doctors and dentists) can charge the Fund and the patients for these services (a patient pays a minimal amount every time he or she uses medical services and the remainder is paid directly by the Fund)(section 55(2) of HSA). The Agreement between the Fund and the BDU and the UDB is renegotiated every year (section 55(1) of HSA). Thus, the BDU and the UDB represent all medical doctors and dentists for the purpose of negotiating the terms of the Agreement and therefore the prices hospitals and doctors and dentists can charge the Fund for providing medical services to persons with health coverage and the manner of providing such services. The Agreement must be countersigned by the Minister of Health and is subject to control by the Supreme Administrative Court in the same manner as is delegated legislation (решение № 8145 от 18 август 2003 г. по адм. д. № 3896/ 2003 г., V чл. св на ВАС, обн. ДВ, бр. 76 от 2003 г.). All hospitals, other medical institutions and individually practising medical doctors and dentists enter into individual contracts with the local branches of the Fund pursuant to the National Framework Agreement (section 59(1) of HSA). These contracts cannot deviate from the terms of the National Framework Agreement (section 59(2) and (8) of HSA). Section 25a(4)(4) of the Public Health Act of 1973 („Закон за народното здраве“), as in force until 1999, and section 40(6) of the Medical Institutions Act of 1999 („Закон за лечебните заведения“), which superseded it, provide that in order to register private practice a medical doctor or a dentist has to produce a certificate to the effect that he or she has been registered with the BDU or the UDB, respectively. Article 324 § 2 of the Criminal Code, as amended by PODDA, provides that a medical doctor or a dentist who practises his or her profession in violation of the law is punishable with up to three years’ imprisonment or a fine from one to three hundred Bulgarian levs. By Article 330 § 2 (2) of the Labour Code, as amended by PODDA, a medical doctor or a dentist may be dismissed from work without notice if he or she had been struck off the registers kept respectively by the BDU or the UDB. Section 34(1) of PODDA enumerates the kinds of information which should be entered in the registers of medical doctors and dentists kept by the regional sections of the BDU and the UDB. While points 1 to 6 of section 34(1) set forth specific types of information (e.g. name, address, education, speciality), point 7 of that section provides that in the register shall be entered “other circumstances”. Section 32(3) of PODDA provides that the application for membership in the BDU, respectively the UDB, should be accompanied by a diploma, a document certifying that in case of a career interruption of more than five years the medical doctor or dentist has successfully passed a validation examination, a scientific degree certificate (if the doctor or dentist has one), a document certifying the place of work and the length of service, and, for foreign nationals – a residence permit and a document certifying that have passed the requisite examinations, as well as a criminal record. In 2002 Parliament adopted the Protection of Personal Data Act („Закон за защита на личните данни“), the purpose of which was to guarantee the integrity of the person and the private life by protecting the individuals from illegal processing of personal data relating to them and to regulate the right of access to such data (section 1(2) of the Protection of Personal Data Act).