HAARVIG v. NORWAY
Inadmissible
Christos Rozakis
The applicant, Mr Knut Haarvig, is a Norwegian national who was born in 1966 and lives in Arvikk, Sweden. He was represented before the Court by Mr T. Randby, a lawyer practising in Oslo. The Norwegian Government (“the Government”) were represented by their Agent, Mrs F. Platou Amble, Attorney, Attorney General’s Office (Civil Matters). The facts of the case, as submitted by the parties, may be summarised as follows. In the spring of 1997 the applicant graduated as a medical doctor. On 15 July 1997 he was granted a licence to perform duty service (turnustjeneste) at a hospital and thereafter he and a friend started to serve at the Østfold Central Hospital. On 1 May 1998 the applicant was arrested and detained on remand for six days due to his and a friend’s involvement in two incidents, which included notably an attempt of burglary, violence against the police and consumption of hashish and ecstasy. On 29 May the State Health Inspectorate notified the applicant that they considered suspending and withdrawing his duty service licence, following which the applicant withdrew from his duty service and was granted special leave with salary, until he went on sick leave in September 1998. On 16 December 1998 the Fredrikstad City Court (byrett) convicted the applicant for his involvement in attempts of burglary (Articles 267 and 268), obstruction of the police in their attempt to arrest his accomplice (Article 127), violence against the police (Article 228) and consumption of hashish and ecstasy (section 31 of the Medicines Act) and sentenced him to five months’ imprisonment (unconditional). On the other hand, the City Court rejected the prosecutor’s request to sentence the applicant under Article 29 (2) of the Penal Code to a loss of right to practice as a doctor. The applicant appealed against the conviction but the Borgarting High Court (lagmannsrett) refused him leave to appeal on 9 February 1999. As the applicant did not lodge an appeal against that decision within the statutory two week time-limit (running from notification), the decision became final on 23 February 1999 or on some date shortly thereafter. The applicant served his prison sentence from April to June 1999. Thereafter he was again on sick leave. In the meantime, on 21 January 1999, the applicant made a request for being re-instated as an intern but, on 18 February 1999, the Health Inspectorate (Helsetilsynet) decided to suspend his licence under section 9 pending a possible revocation under section 8 of the Medical Practitioner Act 1980 (Legeloven, hereinafter referred to as “the 1980 Act”). The decision was taken primarily on the ground of the matters in respect of which he had been convicted and which were deemed “conduct unworthy of a doctor” for the purposes of section 8. Regard was also had to certain irregularities noted with regard to various instances of prescription of medicines and the storage of medical journals, which, it is undisputed, played a secondary part in the decision. On 13 August 1999 the applicant instituted proceedings before the Oslo City Court asking it to quash the suspension of 18 February 1999. The Court notes that, pursuant to section 11 of the 1980 Act, such an action was to be examined under Chapter 30 of the Code of Civil Procedure concerning judicial appeals against administrative decisions. On 5 January 2000 the Health Inspectorate repealed the suspension considering that the applicant was no longer deemed unsuited to perform the profession of medical doctor and issued a disciplinary warning. In May 2000 he ended his sick leave and resumed his duty service. In view of this change, the applicant altered his suit before the City Court to concern a claim for compensation on account of the suspension (section 12 of the 1980 Act). On 6 March 2002 the City Court rejected the applicant’s compensation claim, finding that his suspension had not been unlawful or contrary to Article 4 of Protocol No. 7 to the Convention. On appeal, that judgment was upheld by the Borgarting High Court on 13 October 2003. The applicant’s further appeal was rejected by the Supreme Court (Høyesterett) on 8 September 2004. The Supreme Court unanimously found that the suspension did not violate Article 4 of Protocol No. 7, but was divided (three in favour and two against) as to whether the suspension could be regarded as lawful under the 1980 Act notwithstanding the City Court rejection in the trial of the prosecution’s request to deprive the applicant of his right to practice. Mrs Justice Stabel, who gave the reasons for the majority, held, in so far as the issue of double jeopardy under Article 4 of Protocol No. 7 was concerned, that the suspension did not constitute a criminal matter attracting the application of this provision, having regard to the three criteria for “criminal charge” in Article 6 of the Convention set out in the Engel and Others v. the Netherlands judgment of 8 June 1976 (Series A no. 22). Therefore, the revocation or the suspension of a licence to practice as a doctor, on the ground that the legal conditions for practicing no longer were fulfilled, did not constitute a criminal punishment for the purposes of Article 4 of Protocol No. 7 to the Convention, which therefore did not apply. The minority agreed with this conclusion. In so far as concerned the issue under Article 4 of Protocol No. 7, Mrs Justice Stabel’s reasoning, which the other justices of the majority endorsed in the main, included the following observations: “(34) It would in my view be useful to start by providing an overview of the Norwegian system for granting and revoking permits to practise as a doctor. I should note that authorisation is the term used for the most comprehensive permit to practise as a doctor. A licence, including an intern’s licence as applicable in our case, on the other hand, provides more limited rights. Nevertheless, the legal issues raised by the case will be the same. (35) According to section 2 (3) of the 1980 Act of 1927, a precondition for the granting of an authorisation to practise as a doctor was that the candidate was ‘of good conduct’. Under section 16 of the Act an authorisation could be withdrawn by civil judgment where the doctor was considered unfit to conduct his practice on the grounds of insanity or weakening of the mental faculties or abuse of strong drink or anaesthetising agents. The grounds for loss of authorisation were listed in exhaustive detail and accordingly legal action with respect to revocation could not be brought were the doctor subsequently to be found guilty of breach of the requirement as to good conduct. In the event of conviction of criminal offences, however, deprivation could take the form of a disqualification pursuant to Article 29 of the Penal Code. This general provision, which is now Article 29 (2) of the Penal Code, provides the legal authority to sentence a person found guilty of a criminal offence in the following way if the public interest so requires: ‘Loss for a specific period not exceeding five years or in perpetuity of the right to hold office or to carry out any activity or occupation that the defendant has shown himself or herself to be unfit for or might conceivably abuse or for which a high degree of public confidence is required. ...’ (36) In the 1980 Act, which applies in our case, the requirement as to good conduct as a precondition for authorisation and licensing was continued, with the difference that breaches of this condition would now constitute direct grounds for revocation under the Act. Section 2 (4) made it a condition for the grant of authorisation or a licence that the medical practitioner was not in a situation that could lead to the revocation of the authorisation or licence. This was regulated in section 8, the first paragraph of which read as follows: ‘An authorisation or licence may be revoked if a doctor is not fit to practise medicine on the grounds of serious mental illness, psychological or physical debility, long absence from the profession, the misuse of alcohol, drugs, or other substances with similar effects, grave lack of professional insight, improper medical practice, or conduct unworthy of a doctor.’ (37) Section 9 provided the legal authority for the suspension of an authorisation or licence where there were just and sufficient causes to suppose that grounds existed for revocation. Under section 10, the decision to revoke was no longer taken by the courts but by the Ministry, generally after an opinion had been obtained from the Norwegian Medical Council. This authority was subsequently delegated to the Directorate of Health/ Health Inspectorate. According to section 11, the decision could not be appealed but it could be brought before a court of law, which could review all aspects of the matter. If a suspension or revocation proved to be invalid or was set aside on other grounds, section 12 provided that the doctor could claim damages for losses sustained in accordance with the usual rules. (38) This system is continued in the current Act - the Health Personnel Act of 2 July 1999 No. 64 - which came into force on 1 January 2001. ... (39) Generally the system exists in parallel with the system of sanctions provided for under criminal law. This relates to the different guilt requirements under the two systems and to the fact that the objectives and subjects for assessments are different, see Proposition No. 13 to the Odelsting (1998-1999), pp. 185 and 187. It is assumed that as a general rule the public health authorities may consider revocation, even if health personnel have not been disqualified by judgment in a criminal case. It is emphasised that the regulatory authority shall be concerned with protecting patients against unqualified practitioners, not with punishment. (40) In light of the inter-relationship between the regulations discussed above, [the applicant]’s alternative submission relating to Article 4 of Protocol No. 7 may also have a bearing on corresponding questions under the current Act. Accordingly, in my view it is appropriate to consider this aspect first. (41) The question is whether the suspension decision, which was adopted after [the applicant] had been convicted of the actions in question, but acquitted of the plea that he be disqualified, must be viewed as a re-prosecution in contravention of Article 4 of Protocol No. 7. That the facts underlying the suspension decision in all essential respects are the same as those underlying the criminal conviction, is not disputed. (42) Before I continue I reiterate that the suspension of the licence presupposed the existence of a reasonable basis for assuming that ‘grounds existed for revocation’. Although this case concerns the suspension of a licence, and a revocation, the real issue is nevertheless whether Article 4 of Protocol No. 7 serves as an obstacle to the revocation of a licence where a judgment in a criminal case has already been rendered with respect to the same actions and where the plea for disqualification has not been allowed. (43) In light of Supreme Court case law as it now stands, the issue that must be considered will be identical to the question of whether this constitutes punishment pursuant to Article 6 of the Convention, see most recently the judgment of 8 June 2004 in case No. 2003/1640 HR-2004-00997-A paragraph 54. As noted in paragraph 40 of the said judgment, this question must be decided on the basis of the so-called Engel criteria, (see Engel and Others v. the Netherlands, judgment of 8 June 1976, Series A no. 22). How is the situation classified under national law, the nature and purpose of the statutory rule that was applied and the content and severity of the sanction in question. (44) It will be apparent from my introductory discussion that neither the revocation nor the suspension of a permit to practise as a doctor will constitute punishment under Norwegian law. (45) As regards the second Engel criterion - the nature and purpose of the provision - it is clear to me that the theme for assessment will be the standard specified in section 9 of the 1980 Act by reference to section 8, which I have reproduced in my introductory overview. The overarching standard is whether the doctor is unfit to practise his profession, in our case on the grounds of ‘conduct unworthy of a doctor’. Although the conduct to which the standard is directed will frequently involve - and in our case in fact does involve - criminal actions, I am not inclined to agree with [the applicant] in his submission that it is the criminal actions that make up the nature of the provision. The theme for assessment is whether the doctor satisfies the requirements for holding a permit to practise the profession and continuing to practise the profession. (46) The provisions of the 1980 Act are aimed specifically at a professional group that is dependent upon a special degree of confidence in the mind of the public and accordingly requires a public permit in order to practise. The legislative history of the Act strongly emphasised the need for doctors to observe a high professional and ethical standard and the need for society to control who practises the profession by requiring a public permit to be held and, moreover, that such permits may be revoked if the preconditions are no longer fulfilled (see inter alia NOU (Norwegian Official Report) 1976:1 pp. 26 and 32). The Select Committee therefore proposed the continuation of the existing scheme, but added that a breach of the precondition as to good conduct could result in revocation. The Ministry concurred (see Proposition No. 1 to the Odelsting (1979-80), p. 44). The Select Committee emphasised that the grounds for loss of an authorisation or licence would need to encompass more than criminal actions. The Committee stated as follows: ‘There should also be room for revoking an authorisation or licence in the case of conduct or actions that are not criminal, but this should occur only rarely. On the other hand, not every criminal action should lead to revocation; here as in other contexts the doctor must be found unfit to practise the profession. The blameworthy circumstances must normally relate to his or her medical practice. Nevertheless, there may be instances in which conduct outside the profession may entail that the doctor does not enjoy the necessary confidence, for instance if he or she commits theft, embezzles in the context of his or her practice, defamation or assault of other persons etc.’ (47) As will be apparent from my introductory discussion of the provisions this object has at all times been of central importance and it is now expressly provided for in the purpose clause of the Health Personnel Act. The object of the provisions is not to punish persons who are in breach of the standard but rather to prevent them from causing their patients harm or violating the relationship of trust that must of necessity exist between the general public and the medical profession. This is expressly emphasised in Proposition No. 1 to the Odelsting (1979-80), p. 39, second column. In my assessment this is a long way from the domain of criminal law, a fact that the existence in most European countries of equivalent arrangements serves to emphasise. (48) [The applicant] has submitted that disqualification pursuant to Article 29 (2) of the Penal Code, which is described as punishment, far and away serves the same purpose as the revocation provisions of the 1980 Act. This is indisputably correct, but will nevertheless not be of particular significance. I refer here to the Norwegian Supreme Court Reports (Norsk Retstidende- “Rt.”) 2003 p 264, paragraph 41, where a parallel of this nature was found not to be decisive with respect to rights vesting in an individual permit issued by the public authorities. Nor does the fact that the sanction is for actions that have already been performed change my assessment that this is primarily a civil law sanction. Finally I should also note that there is no direct link between the sanction in question and the preconditions for punishment, as was found to be the case in Rt. 2003 p.1827, paragraph 69. As I have already noted, the overarching and decisive point is whether the doctor in question is unfit to practise the medical profession. (49) The third Engel criterion - the content and severity of the sanction - cannot lead to a different conclusion. Clearly, depriving a doctor of the right to practise will have a serious impact on that doctor. However, in decisions of this type, often referred to as disciplinary decisions, the point of departure has been that the sanctions in question must be very serious - in practice prison sentences, see Rt. 2002 p. 509 and, at p. 520, reference to Inocêncio v. Portugal (application no. 43862/98) , see also Rt. 2003 p. 1100, paragraph 53. A common point of departure has been that the decisions in question have been directed at a limited circle of people. (50) No decision by the European Court directly addresses the question of the revocation of a public permit to practise a profession. The State has referred to a number of dismissal decisions that indicate that this lies outside the domain of criminal law. As regards the revocation of a permit to conduct business, the European Court held as follows in its dismissal decision in Manasson v. Sweden (application 412865/98), a case concerning the revocation of a taxi licence on the grounds of tax offences: ‘... The Court considers that the revocation of the licence did not constitute a determination of a criminal charge against the applicant. Although it may be regarded as a severe measure, what was decisive for the revocation was the applicant’s suitability to run a commercial taxi business, and, more specifically, whether he fulfilled the conditions therefore under administrative law provisions. Thus, the revocation cannot be characterised as a penal sanction and the nature of the relevant proceedings cannot be regarded as criminal ...’ (51) The decision then refers to the Tre Traktörer AB v. Sweden judgment of 7 July 1989, where the revocation of a liquor licence on the grounds of irregularities did not constitute a penal sanction. (52) In European legal tradition the exercise of certain activities requires a public licence. The issuing of licences of this nature is, typically, an administrative activity. It would be inconsistent if the same did not apply to the revocation - reversal - of a licence of this nature where a recipient no longer fulfils the preconditions for holding the licence. (53) Against this background it is clear to me that the revocation and suspension of a licence to practise as a doctor on the grounds that the statutory and necessary preconditions for continuing to practise this activity are no longer present does not constitute a penal sanction in the European Court’s view. The question regarding the concrete application of Article 4 of Protocol No. 7 will therefore not arise.”