CASE OF LE COMPTE, VAN LEUVEN AND DE MEYERE v. BELGIUM
Violation of Art. 6-1;No violation of Art. 11;Just satisfaction reserved
8. Dr. Herman Le Compte, a Belgian national born in 1929 and resident at Knokke-Heist, is a medical practitioner. 9. On 28 October 1970, the West Flanders Provincial Council of the Ordre des médecins (Medical Association), which sits in Bruges, ordered that Dr. Le Compte’s right to practise medicine be suspended for six weeks. The ground was that he had given to a Belgian newspaper an interview considered by the Council to amount to publicity incompatible with the dignity and reputation of the profession. The applicant lodged an objection (opposition) against this decision, which had been given in absentia, but it was confirmed by the Provincial Council on 23 December 1970, the applicant again having failed to appear. Dr. Le Compte thereupon referred the matter firstly to the Appeals Council of the Ordre des médecins, which, on 10 May 1971, held his appeal to be inadmissible, and secondly to the Court of Cassation, on 7 April 1972, the latter declared his appeal on a point of law inadmissible, on the ground that it had been filed without the assistance of a lawyer entitled to practise before that Court. The order suspending Dr. Le Compte’s right to practise became effective on 20 May 1972 but he did not comply with it. For this reason, on 20 February 1973, the Furnes criminal court (tribunal correctionnel) sentenced him, pursuant to Article 31 of Royal Decree no. 79 of 10 November 1967 on the Ordre des médecins, to imprisonment and a fine. This decision was confirmed on 12 September 1973 by the Ghent Court of Appeal; a appeal by Dr. Le Compte on a point of law was dismissed by the Court of Cassation on 25 June 1974. 10. Concurrently with the foregoing proceedings, which are not in issue in the present case (see paragraph 36 below), further proceedings were in progress. In fact, on 30 June 1971 the Provincial Council of the Ordre des médecins had, by a decision rendered in absentia, ordered another suspension, for three months, of the applicant’s right to practise: the Council stated that he had publicised in the press the above-mentioned decisions of the disciplinary organs of the Ordre and his criticisms of those organs, such conduct constituting contempt of the Ordre. 11. Dr. Le Compte had appealed to the Appeals Council of the Ordre which had confirmed this decision although without upholding the allegation of contempt. He had then referred the matter to the Court of Cassation, where he relied on the same grounds. He contended in the first place that compulsory membership of the Ordre des médecins, without which no one may practise medicine and subjection to the jurisdiction of its disciplinary organs were contrary to the principle of freedom of association, which is guaranteed by Article 20 of the Belgian Constitution and Article 11 (art. 11) of the Convention. The Court rejected this plea in the following terms: "... compulsory entry on the register of an ordre which, like the Ordre des médecins, is a public-law institution having the function of ensuring the observance of the medical profession’s rules of professional conduct and the maintenance of the reputation, standards of discretion, probity and dignity of its members cannot be regarded as incompatible with freedom of association, as guaranteed by Article 20 of the Constitution; ... the appellant does not allege that the rule which he is challenging goes beyond the bounds of the restrictions authorised by Article 11 par. 2 (art. 11-2) of the Convention, for example for the protection of health." The applicant also alleged a violation of Articles 92 and 94 of the Constitution: the first provides that the courts of law shall have exclusive jurisdiction to determine disputes over civil rights and the second prohibits the establishment of extraordinary tribunals for the purpose of resolving such disputes. He pointed out that the decision complained of had nonetheless been taken by a disciplinary organ, set up by Royal Decree no. 79, and that it had given a ruling on a civil right, namely the right to practise medicine. The Court of Cassation replied that "disciplinary proceedings and the imposition of disciplinary sanctions are, in principle, unrelated to the disputes over which exclusive jurisdiction is reserved to the courts of law by Article 92 of the Constitution". The Court added that, since the Councils of the Ordre des médecins did not have jurisdiction to determine such disputes, "they are not extraordinary tribunals whose establishment is prohibited by Article 94". Finally, the Court observed that section 1 par. 8 (a) of the Act of 31 March 1967 (see paragraph 20 below) empowered the Crown "to reform and adapt the legislation governing the practice of the various branches of medicine" and that "the legislature was referring, inter alia, to the Act of 25 July 1938 establishing the Ordre des médecins, which Act conferred disciplinary powers on the Councils of the Ordre". Lastly, Dr. Le Compte alleged that there had been a violation of Article 6 par. 1 (art. 6-1) of the Convention. He argued that the decision complained of had been given without any public inquiry and by a tribunal composed of medical practitioners, which could not be regarded as impartial since the kind of conduct of which he was accused might harm his colleagues. The Court of Cassation confined itself to pointing out that Article 6 par. 1 (art. 6-1) did not apply to disciplinary proceedings. Accordingly, by judgment of 3 May 1974, the appeal was dismissed. 12. Dr. Le Compte did not comply with the order suspending his right to practise medicine, which became final following the Court of Cassation’s judgment. On that account he was sentenced by the Bruges criminal court on 16 September and 15 October 1974 to terms of imprisonment and fines. He lodged an appeal against the first decision and an objection against the second, which had been rendered in absentia. 13. Since that time, a number of further proceedings have been instituted, both disciplinary, for the publicity given by the applicant to his dispute with the Ordre, and criminal, for his refusal to comply with the measures imposed by its Councils. One of the disciplinary proceedings resulted in Dr. Le Compte’s being struck off the register of the Ordre with effect from 26 December 1975. In this connection he lodged a further application (no. 7496/76) with the Commission on 6 May 1976; that application, which the Commission declared admissible on 4 December 1979, is not relevant for the examination of the present case. The criminal proceedings, at first instance, led to prison sentences and to fines. 14. Dr. Frans Van Leuven and Dr. Marc De Meyere are medical practitioners, born in 1931 and 1940, respectively. Both of them reside at Merelbeke and are Belgian nationals. 15. On 20 January 1973, thirteen medical practitioners practising in and around Merelbeke filed a complaint to the effect that these two applicants had committed breaches of the rules of professional conduct; it was alleged, in particular, that they had systematically limited their fees to the amounts reimbursed by the Social Security, even when on emergency duty, and had distributed without charge to private houses a fortnightly magazine called Gezond in which general practitioners were held up to ridicule. On 14 March 1973, the applicants were heard by the Bureau of the Provincial Council of the Ordre. They admitted that they had limited the fees charged to their own clients but not the fees charged when they were on emergency duty. In addition, they pointed out that they were not the publishers of Gezond and they denied that they had lampooned their colleagues in its pages. 16. On 19 March 1973, another medical practitioner lodged a further complaint against the applicants; he alleged that, two days after their appearance before the Bureau of the Provincial Council, they had put up in the waiting rooms of the Merelbeke medical centre a notice informing the public of the first complaint and the reasons therefore. On 23 May 1973, the Bureau of the Provincial Council heard the applicants in connection with the second complaint. They declared that they were entitled to provide the public with information about the situation, especially as it was already a matter of common knowledge. 17. The East Flanders Provincial Council of the Ordre des médecins, which sits in Ghent, summoned Dr. Van Leuven and Dr. De Meyere to answer several allegations. On 24 October 1973, it directed that their right to practise medicine be suspended for a period of one month for having charged fees limited to the amounts reimbursed by the Social Security, for having contributed to the magazine Gezond and for having made therein public utterances judged offensive to their colleagues. In addition, Dr. Van Leuven was reprimanded for his behaviour when appearing before the Bureau of the Provincial Council on 14 March 1973. These various decisions were based on Articles 6 par. 2 and 16 of Royal Decree no. 79. The Provincial Council considered, on the other hand, that the posting in the waiting rooms of the medical centre of a notice judged contrary to the rules of professional conduct did not warrant a disciplinary sanction, bearing in mind that the notice had been removed following a request from the Bureau. 18. The applicants appealed to the Appeals Council. On 24 June 1974, the latter declared the appeal admissible and upheld the Provincial Council’s decision insofar as it had found established the allegations relating to the charging of fees limited to the amounts reimbursed by the Social Security and the contribution to the magazine Gezond. For the rest, the Appeals Council set aside the decision challenged and, after taking into account the complaint regarding the notice in the waiting rooms and joining it with the two other complaints, directed that the right of Dr. Van Leuven and Dr. De Meyere to practise medicine be suspended for a period of fifteen days. 19. On 25 April 1975, the Court of Cassation ruled against the applicants, who had appealed on a point of law. The Court rejected the ground of appeal based on breach of Article 11 (art. 11) of the Convention; it considered that the functions of the Ordre des médecins "are by no means unrelated to the protection of health and that compulsory entry ... on the register of an Ordre of this kind does not exceed the restrictions on freedom of association which are necessary for the protection of health". The Court in addition declared inadmissible, for want of legal interest, the ground of appeal to the effect that the limitation of fees to the amounts reimbursed by the Social Security was in conformity with both the law and the rules of professional conduct for medical practitioners; the Court found that the suspension had in fact also been imposed as a sanction for other disciplinary offences. 20. The ordre des médecins, which was established by an Act of 25 July 1938, was re-organised by Royal Decree no. 79 of 10 November 1967. This Decree was made under the Act of 31 March 1967 "investing the King with certain powers with a view to ensuring economic revival, acceleration of regional reconversion and a stable, balanced budget". The Act enabled the Crown, acting by Decrees in Council, to take "all appropriate steps ... to further the quality and ensure satisfactory provision of health care through reform and adaptation of the legislation governing the practice of the various branches of medicine" (section 1 par. 8 (a)); it specified that such Decrees could "repeal supplement, amend or replace existing legal provisions" (section 3). 21. Article 2 of Royal Decree no. 79 provides that "the Ordre des médecins shall include all physicians, surgeons and obstetricians who are permanently resident in Belgium and entered on the register of the Ordre for the Province where they have their permanent residence" and that "in order to practise medicine in Belgium, every medical practitioner" - whether Belgian or foreign - "must be entered on the register of the Ordre". Military doctors, however, are only obliged to be entered on the register if they practise outside their military duties. 22. Alongside the Ordre des médecins, there exist in Belgium private associations formed to protect the professional interests of medical practitioners. The most important of these associations are consulted and invited to take part in collective negotiations when the Government are considering the adoption of decisions affecting those interests, to propose candidates for nomination as members of certain organs and to appoint their representatives on others, and to take various measures themselves. 23. The Ordre des médecins "shall enjoy civil personality in public law" (Article 1, third paragraph, of Royal Decree no. 79). It comprises three kinds of organs, namely Provincial Councils, Appeals Councils and the National Council. 24. The Provincial Councils (of which there are ten) consist of a number, which is always even and is fixed by the Crown, of members and substitute members who are medical practitioners of Belgian nationality elected for six years by doctors entered on the register of the Ordre. There are also an assessor and a substitute assessor who are judges of first instance courts appointed for six years by the Crown; the assessor has a consultative status (Articles 5 and 8 par. 1 of Royal Decree no. 79). The Council’s functions are defined by Article 6 of Royal Decree no. 79 in the following terms: "1o to keep the register of the Ordre. They may refuse or defer entry on the register if the person applying has been guilty either of an act of such seriousness as would cause the name of a member of the Ordre to be struck off the register or of serious misconduct damaging the reputation or dignity of the profession. If the medical commission ... has decided and notified the Ordre that a medical practitioner no longer fulfils the conditions required for practising medicine or that it is necessary, for reasons of physical or mental disability, to place a restriction on the practise by him of medicine, the relevant Provincial Council shall, in the first case, remove the practitioner’s name from the register and, in the second case, make the maintenance of his name thereon subject to observance of the restriction ordered. A practitioner’s name may also be removed from the register at his own request. Reasons must be given for any decision refusing or deferring entry on the register, removing a practitioner’s name therefrom or making its maintenance thereon subject to restrictive conditions; 2o to ensure observance of the rules of professional conduct for medical practitioners and the upholding of the reputation, standards of discretion, probity and dignity of the members of the Ordre. They shall to this end be responsible for disciplining misconduct committed by their registered members in or in connection with the practice of the profession and serious misconduct committed outside the realm of professional activity, whenever such misconduct is liable to damage the reputation or dignity of the profession; 3o to give, of their own motion or on request, the members of the Ordre advice on matters of professional conduct ...; such advice shall be submitted to the National Council for approval ...; 4o to notify the relevant authorities of any acts involving illegal practice of medicine of which the Councils have knowledge; 5o to act, at the joint request of those concerned, as final arbitrator in disputes regarding the fees claimed by a medical practitioner from his client ...; 6o to reply to all requests for advice emanating from courts of law in connection with disputes as to fees; 7o to settle the annual subscription ... including the amount fixed by the National Council for each registered member." 25. The Provincial councils are distinct from the medical commissions which have been set up, outside the Ordre, in each Province and are composed in addition to medical and pharmaceutical practitioners of members of the paramedical professions and of officials of the Ministry of Public Health (Article 36 of Royal Decree no. 78). These commissions have two functions. The first is general and consists of "proposing to the authorities any measures designed to make a contribution to public health" and of "ensuring that practitioners ... (and) members of the paramedical professions collaborate effectively in the implementation of the measures laid down by the authorities for the purpose of preventing or combating diseases subject to quarantine or communicable diseases". The second, specific function comprises various responsibilities: "checking and ... approving practitioners’ diplomas"; "withdrawing approval or making its continuance in force subject to the acceptance by the person concerned of (certain) restrictions"; "ensuring that the practice of medicine (is conducted) in accordance with the laws and regulations"; "detecting and ... reporting to the prosecuting authority cases of illegal practice"; assessing the demand for emergency services and supervising their operation; "informing interested parties, whether acting in public or private capacity, of decisions taken" as regards a practitioner’s exercise of his profession; "advising the organs of the Ordres concerned of allegations of professional misconduct against practitioners"; "supervising public sales where medicines are involved" (Article 37). 26. The two Appeals Councils - one of which uses the French and the other the Dutch language - have their seat "in the Greater Brussels area". They are each composed of ten medical practitioners of Belgian nationality (five members and five substitute members) elected for six years by the Provincial Councils from among persons other than their own members, and ten Court of Appeal judges (five members and five substitute members) appointed by the Crown for the same length of time. From among these judges, the Crown designates the Chairman, who has a casting vote, and the member who is to act as rapporteur (Article 12 par. 1 and 2 of Royal Decree no. 79). The Appeals Councils hear appeals from decisions given by the Provincial Councils on matters of registration or discipline. They deal, as the body of first and final instance, with claims concerning the regularity of elections to the Provincial Councils, the Appeals Councils and the National Council. They also decide cases on which the Provincial Councils have not given a ruling within the prescribed time-limit. Finally, they settle any dispute between Provincial Councils regarding a practitioner’s place of permanent residence (Article 13). 27. The National Council comprises twenty persons (ten members and ten substitute members) of Belgian nationality who are respectively elected by each of the Provincial Councils from among medical practitioners entered on its register, and twelve persons (six members and six substitute members) appointed by the Crown from among medical practitioners nominated in lists of three candidates by the medical faculties in the country. The National Council is presided over by a judge of the Court of Cassation chosen by the Crown and consists of two sections - one French-speaking, the other Dutch-speaking - each of which elects from among its number a Vice-President (Article 14). The National Council formulates "those general principles and those rules concerning the morality, reputation, standards of discretion, probity and devotion to duty essential for practice of the profession which constitute the code of professional conduct for medical practitioners"; these principles and rules may be made compulsory by Royal Decrees in Council (a draft code failed to receive Royal approval). It keeps up to date a list of those disciplinary decisions given by the Provincial and Appeals Councils which are no longer open to appeal. It gives reasoned opinions "on general matters, on problems of principle and on the rules of professional conduct". It settles the amount of the subscription medical practitioners are asked to pay to the Ordre. More generally, it takes "all steps necessary for the achievement of the aims of the Ordre" (Article 15). 28. In the procedure relating to disciplinary and registration matters, which is primarily governed by the Royal Decree of 6 February 1970 "regulating the organisation and working of the Councils of the Ordre des médecins", the contending parties are always heard. There may be three stages: a ruling at first instance by the Provincial Council, a ruling at final instance by the Appeals Council and a review by the Court of Cassation of the legality of the decisions and the observance of formal requirements. 29. The procedure begins before the Provincial Council which "acts either on its own initiative, or at the request of the National Council, the Minister responsible for public health, the procureur du Roi or the medical commission, or on complaint by a medical practitioner or a third party" (Article 20 par. 1, first sub-paragraph, of Royal Decree no. 79). The procedure continues before the Appeals Council if it has been seised either by the practitioner concerned, or by the Provincial Council’s assessor, or by the President of the National Council acting jointly with one of the Vice-Presidents; an appeal has suspensive effect (Article 21). 30. Investigation of the matter necessarily involves the participation of a member of the judiciary: before the Provincial Council, for the purposes of the initial investigation, this will be the assessor; before the Appeals Council, for the purposes, if need be, of a supplementary investigation, it will be the Council member acting as rapporteur (see paragraphs 24 and 26 above). Furthermore, the Provincial Council member who acted as rapporteur may always be heard by the Appeals Council (Articles 7 par. 1, 12 par. 2 and 20 of Royal Decree no. 79). 31. Before the Provincial and Appeals Councils, the proceedings are conducted in private (Article 24 par. 1, sub-paragraph 3, of Royal Decree no. 79 and Article 19 of the Royal Decree of 6 February 1970). The medical practitioner concerned has the right to be informed as soon as possible of the opening of an inquiry against him (Article 24 of the Royal Decree of 6 February 1970); the procedure further provides for time-limits and formalities allowing him to have adequate time and facilities for the preparation of his defence (Articles 25 and 31); in addition, it contains guarantees concerning the use of languages (Articles 36 to 39). The practitioner is also entitled to challenge the members of the organ hearing his case; he appears in person and may be assisted by one or more counsel who, like himself, may inspect the case-file (Articles 26, 31 and 40 to 43). 32. The Provincial and Appeals Councils are bound to deliver their ruling within a reasonable time, to preserve the secrecy of their deliberations and to give reasons for their decision. The person concerned must be promptly informed of the decision and of any appeal which may have been entered. Decisions are taken by simple majority. However, a two-thirds majority is required for striking a practitioner off the register of the Ordre or for his suspension for more than a year. The same rule applies to Appeals Council decisions ordering a sanction where the Provincial Council has imposed none or increasing the severity of the sanction imposed by the Provincial Council (Article 25 in fine of Royal Decree no. 79, Articles 4, 12, 26, 32 and 33 of the Royal Decree of 6 February 1970). The sanctions which may be imposed by the Provincial Councils - and also, if appropriate, the Appeals Councils - are "warning, censure, reprimand, suspension of the right to practise medicine for a period not exceeding two years and striking off the register of the Ordre" (Article 16 of Royal Decree no. 79). 33. Under Article 23 of Royal Decree no. 79, "final decisions of the Provincial Councils or the Appeals Councils may be referred to the Court of Cassation either by the Minister responsible for public health, or by the President of the National Council acting jointly with one of the Vice-Presidents, or by the practitioner concerned, on the ground of contravention of the law" - the latter term being understood in a wide sense - "or of non-observance of a formal requirement which is either a matter of substance or laid down on pain of nullity". The Court will have before it the complete case-file (decisions at first instance and on appeal, memorials and final submissions of the parties, including a detailed statement of the facts); however, it cannot verify the findings of fact made by the Councils of the Ordre, unless it is alleged that there has been a breach of the rules of evidence. The Court does not have jurisdiction to rectify factual errors on the part of the Appeals Councils or to examine whether the sanction is proportionate to the fault. An appeal to the Court of Cassation on a point of law has suspensive effect. 34. Decisions in a disciplinary matter which have become final are notified to the Minister of Public Health; the most important ones (striking off the register of the Ordre or suspension of the right to practise) are also notified to the medical commission and to the procureur général attached to the Court of Appeal (Article 27 of Royal Decree no. 79 and Article 35 of the Royal Decree of 6 February 1970).