CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 6 mars 1989

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 12715/87                       by Pieter Edzo RAUWERDA                       against the Netherlands             The European Commission of Human Rights sitting in private on 6 March 1989, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                  Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 31 December 1986 by   Pieter Edzo RAUWERDA against the Netherlands and registered on 5 February 1987 under file No. 12715/87;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:     THE FACTS           The applicant is a Dutch citizen, born in 1913 and presently residing in Groningen, the Netherlands.   He is represented in the proceedings before the Commission by Mr.   L. van Heijningen, a lawyer practising in The Hague.           The facts, as submitted by the applicant, may be summarised as follows:           The applicant is a medical practitioner.   Since 1979 he has treated drug addicts.           On 10 January 1983 a complaint against the applicant was lodged with the Medical Disciplinary Board (Medisch Tuchtcollege) of Groningen.   The complaint was deposited by both the Regional Medical Inspector of Public Health (Geneeskundig Inspecteur van de Volksgezondheid) and the Regional Public Health Inspector for Medicines (Inspecteur van de Volksgezondheid voor de Geneesmiddelen). It was alleged that the applicant had prescribed medicines in contravention of standards of due care, had not consulted his patients' general practitioners and had not ensured that these patients received psychological help.           In its decision of 17 December 1984 the Medical Disciplinary Board declared the complaint relating to the prescription of medicines inadmissible and the complaint relating to the practice of medicine ill-founded.           The Health Inspectors appealed to the Central Medical Disciplinary Board (Centraal Medisch Tuchtcollege).   In its decision of 29 May 1986, pronounced publicly on 21 August 1986, the Central Medical Disciplinary Board declared the complaint relating to the prescription of medicines admissible but ill-founded.   It considered the other complaint partly well-founded, namely insofar as it related to the fact that the applicant had not consulted the general practitioners dealing with his patients and had not ensured that these patients received psychological help.   It held that, thereby, the applicant had undermined public faith in the medical profession, which is a disciplinary offence under the Medical Disciplinary Act (Medische Tuchtwet).   It reprimanded the applicant.   COMPLAINTS           The applicant complains that the Health Inspectors were represented by a lawyer, which, in the present case, is in violation of Dutch law; that under Dutch law the President of the Central Medical Disciplinary Board must open a preliminary investigation, which did not happen in the present case; that the complaint insofar as it had been lodged by the Regional Public Health Inspector for Medicines should have been declared inadmissible; that concerning this complaint, the Central Medical Disciplinary Board considered that, although the way in which the applicant had acted with regard to the prescription of medicines could raise doubts as to his exercise of due care, it could not be considered that, in concrete cases, he had acted   wrongly and in contravention of standards of due care, which is, according to the applicant, inadmissible since this consideration will discredit him; that in most cases he did consult the General Practitioners dealing with his patients; that the consideration of the   Central Medical Disciplinary Board that the applicant should not deal with patients who do not allow him to consult their General Practitioners brings him into a moral conflict;   that he himself gives his patients a socio-psychiatric treatment that is not worse than that given by official institutions;   that the treatment of drug addicts by the State is dealt with differently by the authorities than the treatment given by the applicant, which was not taken into consideration by the Central Medical Disciplinary Board; and that, in violation of Dutch law, the Central Medical Disciplinary Board's decision was not pronounced publicly within three weeks after the hearing.           The applicant further complains that the complaints against him were lodged on 10 January 1983 and that the decision of the Central Medical Disciplinary Board was pronounced on 21 August 1986, which exceeds a reasonable time;   that the hearing was not public; and that it should have been possible to appeal against the decision of the Central Medical Disciplinary Board, as this decision was discreditable and ill-founded.           The applicant invokes Article 6 of the Convention.   THE LAW           The applicant has complained of a decision of the Central Medical Disciplinary Board, pronounced publicly on 21 August 1986 and of the proceedings concerned.   He has invoked Article 6 (Art. 6) of the Convention.           Article 6 para. 1 (Art. 6-1) of the Convention provides, inter alia, as follows:   "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".             The Commission notes that in the present case the Central Medical Disciplinary Board merely reprimanded the applicant and had no authority to impose a more severe measure.   The Commission is, therefore, of the opinion that the proceedings before the Central Medical Disciplinary Board did not involve a determination of the applicant's civil rights and obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, even though the proceedings may have indirect consequences as to his professional reputation.           On the question whether, in the present case, the Central Medical Disciplinary Board has, in fact, determined a criminal charge against the applicant the Commission refers to the criteria set out by the European Court of Human Rights in its judgment of 8 June 1976 in the case of Engel and others:     "a) whether the provision defining the disciplinary offence charged belongs, according to the system of the respondent State, to criminal law, disciplinary law or both concurrently;   b) the very nature of the offence;   c) the degree of severity of the penalty that the person concerned risks incurring" (Series A No. 22, p. 35, para. 82).             The Commission notes that in the present case the applicant was charged with having violated a provision of the Medical Disciplinary Act.   This Act does not exclude the liability of a medical practitioner under penal law or civil law.   The disciplinary offence of which the applicant was convicted is limited and linked to the exercise of the profession of medical practitioners.   The measure imposed was not a severe one and the applicant did not risk a more severe measure than a reprimand before the Central Medical Disciplinary Board.   It follows that in view of the above criteria the applicant was not the object of a criminal charge within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.           The Commission is, therefore, of the opinion that Article 6 (Art. 6) of the Convention does not apply in the present case.   It follows that the application is as a whole incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE     Secretary to the Commission             President of the Commission             (H.C. KRÜGER)                           (C.A. NØRGAARD)