Gautrin and Others v. France (38/1997/822/1025-1028) 20 May 1998: – no public hearing before Île-de-France Regional Council and disciplinary section of National and lack of impartiality of those bodies

France – no public hearing before Île-de-France Regional Council and disciplinary section of National Council of ordre des médecins and lack of impartiality of those bodies

I. ARTICLE 6 § 1 OF THE CONVENTION

A. Applicability

Disciplinary proceedings in which what was at stake was right to continue to practice medicine as a private practitioner gave rise to "contestations (disputes) over ‘civil’ rights".

B. Compliance

1. Publicity

(a) Government’s preliminary objection (failure to exhaust domestic remedies)

Objection based on failure to appeal on points of law to Conseil d’État – appeal would not have been an "adequate" and "effective" remedy in case before Court as Decree no. 48-1671 of 26 October 1948 expressly precluded holding in public hearings before professional disciplinary bodies and it was Conseil d’État’s settled case-law that provisions of Article 6 § 1 were inapplicable to proceedings before them.

Conclusion: objection dismissed (unanimously).

(b) Merits of complaint

Recapitulation of Court’s case-law.

It was not suggested that circumstances existed to permit dispensing with a public hearing– fact that hearing before Conseil d’État would have been in public was irrelevant.

Conclusion: violation (unanimously).

2. Impartiality

(a) Government’s preliminary objection (failure to exhaust domestic remedies)

(i) failure to exercise right of challenge

Remedy not "effective": complaint not of bias on part of any individual member of disciplinary bodies in question, but of "objective" bias of those bodies; right to challenge

could only be exercised in respect of individual members, impossible to challenge all members of the disciplinary section of the National Council of the ordre des médecins.

(ii) failure to appeal on points of law

Objection had been raised before Commission: Government not stopped.

Remedy not "adequate": if Conseil d’État had quashed decision of disciplinary section of National Council of ordre, it would not have been bound to rule on merits of case – if it had remitted the case, it could only have done so to same body without there being any requirement that it be differently constituted; it would have been only after a second appeal on points of law that Conseil d’État would have been required to decide case finally.

Conclusion: objection dismissed (unanimously).

(b) Merits of complaint

Conferring duty of adjudicating on disciplinary offences on professional disciplinary bodies did not in itself infringe Convention – it was nevertheless necessary that either professional disciplinary bodies themselves complied with requirements of Article 6 § 1 or that they were subject to subsequent review by a judicial body that had full jurisdiction and did provide the guarantees of that Article.

There were two tests for assessing whether a tribunal was impartial. First consisted of seeking to determine personal conviction of a particular judge in a given case. Second – which was only one applicable in case before Court – consisted in ascertaining whether judge offered sufficient guarantees: Court verified whether "applicants" fears were objectively justified.

There was a worrying connection between competitors of S.O.S. Médecins and professional disciplinary bodies – composition of latter tended to justify applicants’ fears.

Conclusion: violation (unanimously).

Compliance with Article 6 § 1

(b) Merits of the complaint

(ii) The Court’s assessment

57. The Court reiterates that, even in instances where Article 6 § 1 of the Convention is applicable, conferring the duty of adjudicating on disciplinary offences on professional disciplinary bodies does not in itself infringe Article 6 § 1 of the Convention. Nonetheless, in such circumstances the Convention calls for at least one of the following two systems: either the professional disciplinary bodies themselves comply with the requirements of that Article, or they do not so comply but are subject to subsequent review by a judicial body that has full jurisdiction and does provide the guarantees of Article 6 § 1 (see the Albert and Le Compte judgment cited above, p. 16, § 29).

It is therefore necessary in the present case to verify whether the Regional Council of the Île-de-France ordre des médecins was "impartial" within the meaning of Article 6 § 1 and, if it was not, whether the disciplinary section of the National Council of the ordre was "impartial".

58. There are two tests for assessing whether a tribunal is impartial within the meaning of Article 6 § 1: the first consists in seeking to determine the personal conviction of a particular judge in a given case and the second in ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see, among other authorities, mutatis mutandis, the Saraiva de Carvalho v. Portugal judgment of 22 April 1994, Series A no. 286-B, p. 38, § 33).

The applicants, the Government and the Commission agreed that only the second of those tests was relevant in the instant case. When applied to a body sitting as bench, it means determining whether, quite apart from the personal conduct of any of the members of that body, there are ascertainable facts which may raise doubts as to its impartiality. In this respect even appearances may be of some importance. It follows that when it is being decided whether in a given case there is a legitimate reason to fear that a particular body lacks impartiality, the standpoint of those claiming that it is not impartial is important, but not decisive. What is decisive is whether the fear can be held to be objectively justified (ibid., p. 38, § 35).

59. The applicants practice medicine in the Île-de-France region and are members of S.O.S. Médecins, an organization which aims to provide emergency medical services on call to patients (see paragraph 7 above). In that region, other associations, in which a number of doctors’ unions and département councils of the ordre are involved, are also active in that sector, examples being "Garde médicale de Paris", "SUR-93" and "ASSUM-94".

The Regional Council of the Île-de-France ordre des médecins, with whom complaints had been lodged by two doctors’ unions, and subsequently the disciplinary section of the National Council, had to decide whether, by displaying the name "S.O.S. Médecins" on their vehicles and prescriptions, the applicants had contravened Article 23 of the Code of Professional Conduct prohibiting advertising (see paragraph 9 above). It is nonetheless probable that, as the applicants maintained, the dispute was not simply an issue of compliance with the Code of Professional Conduct, since it had arisen in the context of competition between S.O.S. Médecins and the other associations providing "emergency care" referred to above. The Court notes that the members of the regional council and thirty-two of the thirty-eight members of the National Council – from among whose members the disciplinary section is elected – are practitioners directly appointed by the département councils (see paragraphs 17-19 above). As a result, those two bodies had a worrying connection with the competitors of S.O.S. Médecins and it is understandable that the applicants suspected the members of those bodies of bias.

The fact that Dr Boissin and Dr Cash and, to a lesser extent, Dr Barkatz, were members of the regional council tends to justify the applicants’ fears as regards that body. It is clear from the case file that Dr Boissin had in 1990, as a representative of the Paris département Council, been on the board of "Garde médicale de Paris" and Dr Cash a member of the Seine-Saint-Denis département council, which had been one of the founders of "SUR-93". Dr Barkatz had been Vice-Chairman of the Seine-et-Marne département council, whose Chairman, at the twelfth general meeting of the ordre on 28 May 1988, when referring to the use of the name "S.O.S. Médecins" had stressed "the concern of colleagues who do not accept the discrimination against them and the economic harm caused them by the fact that the use of a well-publicised name enabled patients to be enticed away".

The fact that Dr Gatel, Dr Vergeylen and Dr Gilbert were on the disciplinary section of the National Council of the ordre tends to justify the applicants’ fears as regards that body also. Dr Gatel was General Secretary and later Chairman of the Rhône département council of the ordre des médecins when, for infringements similar to those alleged against the applicants, it lodged a complaint and instituted proceedings against the Chairman of S.O.S. Médecins, Lyon. In addition, while the proceedings against the applicants were pending before the disciplinary section of the National Council of the ordre, he had been Chairman of the Committee for the Provision of Medical Assistance and Emergency Care at the National Council and had, in that capacity, lodged a report in which, among other things, the need for a ban on advertising on vehicles and the use of commercial acronyms had been stressed. Lastly, at the National Council’s 183rd session on 27-29 June 1991 – which was also attended by Dr Vergeylen –, Dr Gatel had presented a report on "the state of relations with organisations providing emergency care" and had said, in particular:

"while there is less cause for dispute, differences of opinion remain...: the name ‘S.O.S. Médecins’ still appears on the association’s vehicles in some départements; it should be replaced by the generic terms ‘doctor’, ‘doctor on call’ or ‘doctor on emergency’ recommended by the judicial and ministerial authorities; ... The Council is satisfied with the nature of its relations with the organizations providing emergency services, but considers that it must remain very vigilant as to the evolution of those relations and their repercussions at local level."

Dr Vergeylen was Vice-Chairman of the Val-de-Marne département council, which had been a founder member of "ASSUM-94", one of whose directors was also Chairman of the Val-de-Marne département council. Dr Gilbert was Chairman and later Vice-Chairman of the Isère département council, which was one of the founder members of an association providing emergency medical care in Grenoble, the "AMUAG".

60. Consequently, regard being had mainly to the special context and special nature of the dispute the professional disciplinary bodies had to decide, neither the Île-de-France Regional Council of the ordre des médecins, nor the disciplinary section of the National Council of the ordre was an "impartial" tribunal within the meaning of Article 6 § 1. In short, there has been a violation of that provision.

| Return to Topic Menu | Return to Main Menu |