CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 30 juin 1993

.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. 21682/93                       by Siv and Per WESTERBERG                       against Sweden         The European Commission of Human Rights (Second Chamber) sitting in private on 30 June 1993, the following members being present:              MM.    S. TRECHSEL, President of the Second Chamber                  G. JÖRUNDSSON                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO              Mr.   K. ROGGE, Secretary to the Second Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 3 April 1993 by Siv and Per WESTERGERG against Sweden and registered on 19 April 1993 under file No. 21682/93;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows: THE FACTS         The first applicant, Per Westerberg, born in 1917, is a medical practitioner. The second applicant, Siv Westerberg, his wife, born in 1932, is a lawyer. They are both Swedish citizens and reside in Gothenburg. The first applicant is represented before the Commission by the second applicant.         The applicants have described the background to their present complaint in the following terms :         Per Westerberg has been practising medicine for many years. Siv Westerberg also practised medicine until 1979 when, as a result of a conflict with the Social Insurance Board (Försäkringskassan) of Gothenburg, her licence to practise medicine was withdrawn. She then studied law and, after having obtained a law degree, started practising as a lawyer.         As a lawyer, Siv Westerberg dealt in particular with cases of abuse of power against individuals, including cases of forced taking into care of children which sometimes ended up before the Convention organs in Strasbourg. Siv Westerberg's activities were disliked by the Swedish authorities which in different ways tried to cause difficulties for her. When they were not very successful in these attempts, they found that the best way would be to harm her husband, Per Westerberg.         Many of Per Westerberg's patients had been engaged in heavy industrial work which had caused physical injuries, and Per Westerberg therefore, in many such cases, ordered sick leave in order for them to recover. This caused a conflict with the Social Insurance Board of Gothenburg which was reluctant to pay sickness benefits to his patients and took contact with the National Board of Health and Welfare (Socialstyrelsen) in order to complain of the liberal way in which Per Westerberg considered his patients entitled to sick leave.         In December 1987 two doctors were sent by the National Board of Health and Welfare to inspect Per Westerberg's medical practice and to have copies made of certain medical files which could be further studied. Some of these files were then analysed by a doctor who had less competence than Per Westerberg and who, without visiting Per Westerberg and seeing any of the patients concerned, formulated general criticism of his work.         Ten months later the National Board of Health and Welfare referred the matter to the Disciplinary Board for Medical Staff (Hälso- och sjukvårdens ansvarsnämnd). Before this, Per Westerberg had not been given the opportunity of reading and commenting on the findings in the National Board of Health and Welfare's Report.         The Disciplinary Board communicated the relevant documents to Per Westerberg, who in his observations to the Board contested that he was guilty of any irregularities in the way he dealt with his patients.                 The Disciplinary Board then asked another doctor to submit his comments on the case. That doctor was married to the former Director General of the National Board of Health and Welfare and could therefore, in the applicants' opinion, not be considered impartial. On the basis of that doctor's report the Disciplinary Board decided, on 3 April 1991, to impose on Per Westerberg the disciplinary sanction of a warning.         Per Westerberg appealed to the Administrative Court of Appeal (kammarrätten) of Stockholm which, on 11 December 1991, rejected the appeal. The Supreme Administrative Court (Regeringsrätten) refused leave to appeal on 23 November 1992.     COMPLAINTS         The first applicant, Per Westerberg, complains of violations of   (a)    Article 4 para. 2 of the Convention in that the State tries to force him to be the "State's representative" in his relations with his patients and thereby to perform compulsory labour on behalf of the State,   (b)    Article 6 of the Convention in that his right to exercise his profession in a correct and ethical manner, and thereby his civil rights, has been violated,   (c)    Article 6 of the Convention in that he has not had an impartial trial, in that he has been innocently convicted contrary to Swedish law, and in that he has not had a trial within a reasonable time,   (d)    Article 6 of the Convention in that he was not given the opportunity to comment on the charges brought against him by the National Board of Health and Welfare before that Board referred his case to the Disciplinary Board and in that the decision to refer his case to that Board was not communicated to him,   (e)    Article 6 of the Convention in that the real reason for the charges against him was the desire of the authorities to harm his wife Siv Westerberg,   (f)    Article 9 of the Convention in that the State tries to force Per Westerberg to take care of the State's interests instead of the interests of his patients, this being a violation of his right to freedom of conscience,   (g)    Article 10 of the Convention in that Per Westerberg has been convicted because of his opinions about how certain patients shall be treated, and   (h)    Article 1 of the First Protocol in that, as a result of the State's action, he has only been able to practise medicine on a limited scale, which has resulted in loss of income.         The second applicant, Siv Westerberg, complains of violations of   (a) Articles 6 and 13 of the Convention in that the State's action against her husband is in reality aimed at preventing her from exercising her right to freedom of expression in Sweden and at discouraging her from conducting cases against Sweden in Strasbourg, and     (b)    Article 25 of the Convention in that the action aimed at discouraging her from conducting cases before the Convention organs is a serious violation of the right of individual petition.         Both applicants complain of violations of Article 10 of the Convention in that their right to freedom of expression and opinion and their right to convey information have been violated.     THE LAW   1.      The applicants complain of various violations of Article 6 (Art. 6) of the Convention in the disciplinary proceedings which resulted in the disciplinary sanction of a warning being imposed on the first applicant, Per Westerberg.         Article 6 para. 1 (Art. 6-1) of the Convention provides, in its relevant parts, as follows :         "1.   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 first question which arises is therefore whether Article 6 (Art. 6) is applicable to the proceedings at issue or, in other words, whether these proceedings concern the determination of civil rights and obligations or of a criminal charge.         While it appears from the case-law of the European Court of Human Rights (see, for instance, Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43) that the right to practise medicine can be regarded as a civil right, the Commission notes that in the proceedings against Per Westerberg only the sanction of a warning was imposed. These proceedings cannot therefore be considered to have concerned Per Westerberg's right to practise medicine or any other civil right or obligation.         As regards the notion of "criminal charge", the European Court of Human Rights has established certain criteria in order to determine whether, in the application of Article 6 (Art. 6) a charge is to be regarded as a criminal charge. These criteria are the classification of the offence in domestic law, the nature of the offence and the nature and severity of the penalty that the person concerned risked incurring (see Eur. Court H.R., Özturk judgment of 21 February 1984, Series A No. 73, p. 18, para. 51).         In the present case, the Commission notes that in Swedish law the proceedings at issue concerned a disciplinary offence. Moreover, the offence was such that it could only be committed by medical doctors or other medical personnel. The sanction was a warning, which is a typical disciplinary sanction. There is no indication that the applicant risked incurring a more severe sanction.         In view of these various elements, the Commission considers that the proceedings did not concern a criminal charge within the meaning of Article 6 (Art. 6) of the Convention.         It follows that the applicants' complaint of violations of Article 6 (Art. 6) must be rejected as being incompatible ratione materiae with the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   2.     Insofar as the applicants complain of violations of Articles 4, 9, 10 and 13 (Art. 4, 9, 10, 13) of the Convention and Article 1 of the First Protocol (P1-1), the Commission finds no appearance of any violation. The Commission notes, in particular, that it has in no way been shown that the disciplinary action against Per Westerberg was aimed at causing harm to Siv Westerberg by reason of her opinions or of her involvement in cases brought before the Convention organs.         It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     Insofar as the second applicant, Siv Westerberg, invokes Article 25 (Art. 25) of the Convention, the Commission finds no evidence that she has been hindered in the exercise of her right to bring individual petitions to the Commission. No action is therefore called for in this respect.         For these reasons, the Commission unanimously   1.     DECLARES THE APPLICATION INADMISSIBLE;   2.     DECIDES TO TAKE NO ACTION IN REGARD TO ARTICLE 25 (Art. 25) OF       THE CONVENTION.     Secretary to the Second Chamber        President of the Second Chamber           (K. ROGGE)                            (S. TRECHSEL)