CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 janvier 1995

.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. 19913/92                        by Johannes PROBST                        against Germany         The European Commission of Human Rights (First Chamber) sitting in private on 11 January 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS              Mrs.   M.F. BUQUICCHIO, Secretary to the 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 2 June 1991 by Johannes Probst against Germany and registered on 29 April 1992 under file No. 19913/92;         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 applicant is a German citizen born in 1921 and living in Iserlohn.         He has lodged a previous application (no. 14186/88) complaining of having been excluded from practising as a medical practitioner within the social security system, a measure which allegedly deprived him of all means of existence so that he had to live in a shelter for the homeless.   He alleged violations of Articles 3 and 6 of the Convention.   The application was rejected by the Commission on 7 February 1990 as being manifestly ill-founded.         The present application concerns two distinct complaints, namely, on the one hand, a complaint about the withdrawal of the applicant's licence to practise medicine and on the other hand, a complaint about civil proceedings in which the applicant was the losing party.                                     I.         As far as the applicant's licence to practise medicine is concerned an order was given against the applicant by the competent authority on 14 March 1984 suspending his right to practice as a medical doctor (Ruhen der Approbation).   This measure was taken on the ground that in view of a disciplinary and criminal conviction and other incidents, the applicant had shown objectionable behaviour which gave rise to doubts as to his fitness to exercise the medical profession in a proper manner.   It was added that the applicant had refused to undergo a psychiatric examination.         On 24 April 1986 the applicant brought an administrative court action claiming that the order suspending him from medical practice was null and void.   This action was to no avail.         A further action brought on 13 May 1986 with a view to having the order set aside was likewise dismissed by the Administrative Court (Verwaltungsgericht) in Arnsberg on 18 June 1986.         The applicant's appeal (Berufung) was rejected by the Administrative Court of Appeal for North-Rhine-Westfalia (Oberverwaltungsgericht) on 4 December 1986.         In the meantime on 30 July 1986 the applicant had brought another administrative court action requesting the Administrative Court to set aside the order suspending him from medical practice.   This action was rejected by the Administrative Court in Arnsberg on 10 October 1986.         The applicant renewed his requests and by judgment of 27 January 1989 the Administrative Court eventually ordered the authority to set aside the order suspending the applicant's right to practice medicine.   It is stated in this decision that the new action which the applicant had introduced on 26 February 1988 was well- founded.   The Court had regard to a medical expert opinion submitted in criminal proceedings, brought against the applicant, on the question of the applicant's criminal responsibility.   In view of that opinion the court noted that the applicant had an abnormal personality structure but there was no indication that he was unfit to practise medicine for reasons of illness or drug addiction.   The suspension order was therefore, in the court's opinion, no longer justified and not an adequate measure provided for by the law to prevent the applicant from exercising the medical profession.         However, on 30 March 1989 the competent authority withdrew the applicant's licence to practise medecine (Widerruf der Approbation) on the ground that the applicant was unreliable and untrustworthy to exercise the medical profession.         The applicant's administrative court action against this order was rejected by the Arnsberg Administrative Court on 23 February 1990. Already on 23 May 1989 the court had refused to grant the applicant injunctive relief by way of a stay of execution of the order withdrawing his licence.   Having regard to the applicant's conviction by a penal chamber of the Hagen Regional Court on 12 May 1987 and the above mentioned medical expert opinion submitted in the course of the criminal proceedings, the Administrative Court found that the applicant had an abnormal personality structure with a diffuse conception of reality.   He had been in constant conflict with his environment.   As a consequence he had been, inter alia, convicted of fraud committed in connection with the exercise of his profession.   Vis-à-vis the authorities he had often an aggressive and inflexible, unreasonable attitude.   Furthermore, in spite of his obligation to respect medical secrecy he threatened two of his patients with turning them in to the police as drug addicts if they did not pay his fees.         The applicant's appeal (Berufung) was rejected by the Administrative Court of Appeal of North-Rhine-Westfalia on 17 July 1990.   The court refused to grant leave to appeal on points of law.         The applicant's request to be granted legal aid in order to request the Federal Administrative Court (Bundesverwaltungsgericht) to grant him leave to appeal on points of law was rejected by that court on 21 January 1991.         The applicant then lodged a constitutional complaint against the decision of 21 January 1991. Inter alia, he complained of the length of the proceedings.         On 15 April 1991 a group of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) refused to consider the merits of this complaint stating that the applicant had failed to substantiate his petition.   COMPLAINTS         The applicant complains under Articles 3 and 6 of the Convention that he was not given a fair trial and that the proceedings relating both to the suspension and the withdrawal of his licence to practise medicine globally exceeded a reasonable time since they lasted a total of seven years and four months.                                     II.         On 30 September 1993 a default judgment was given against the applicant by the District Court (Amtsgericht) in Iserlohn ordering him at the request of his landlord to remove an aquarium installed in his apartment.         The applicant lodged a complaint (Einspruch) against the default judgment alleging that he was sick and had to be examined in a medical clinic.   He requested that the proceedings be suspended. On 3 November 1993 he was summoned to a hearing of the case on 2 December 1993.   It was pointed out in the summons that he had not shown that he was unfit for the proceedings (verhandlungsunfähig).   In any event he could be represented by any person of age or a lawyer. On 2 December 1993 his complaint was rejected, again by judgment on default.          The applicant's request to be granted legal aid in order to lodge an appeal (Berufung) was rejected by the Hagen Regional Court on 20 January 1994 as offering no prospects of success. The court considered that the applicant had not shown that there was a justified reason for his not attending the hearing of 2 December 1993. The court noted that the applicant had been informed of the date of the hearing by letter of 6 November 1993. This letter had been served on him personally. However, he did not react before 30 November 1993. His letter written on that day reached the lower court on the day of the hearing. In these particular circumstances the applicant should have informed himself whether his request would and could still be taken into account. If not he should have seen to it that he was represented by proxy as he had been advised to do. He had however not stated any reason why he omitted to proceed in that manner.         The applicant then lodged a constitutional complaint which was rejected in accordance with Sections 93 a and 93 b of the Federal Constitutional Court Act (BVerfGG) on 27 April 1994 by a group of three judges of the Federal Constitutional Court.   COMPLAINTS         The applicant complains that a default judgment was given against him. He argues that in view of his illness he did have a valid reason to request that the proceedings be suspended.   He therefore considers that in these circumstances he was not given a fair trial by an impartial tribunal and alleges a violation of Article 6 of the Convention.   He invokes in addition Article 3 of the Convention, pointing out that he is an old and sick person and that the aquarium is of particular value to him.   THE LAW   I.     The applicant has complained that the administrative proceedings relating first to the suspension and later to the withdrawal of his licence to practise medicine were unfairly conducted and not terminated within a reasonable time (Article 6 (Art. 6) of the Convention).         1) However, the Commission notes that the applicant failed to bring his complaint about the suspension of his licence to the Federal Administrative Court as well as to the Federal Constitutional Court, while the constitutional complaint which the applicant lodged against the decisions given in the administrative proceedings relating to the withdrawal of his licence was not admitted for a decision on the merits because it was considered to be unsubstantiated.         It can in these circumstances not be found that the applicant has exhausted domestic remedies and this part of the application must therefore be rejected in accordance with Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.         2) So far as the length of the proceedings is concerned the Commission notes that this matter was mentioned in the applicants constitutional complaint relating to the proceedings on the withdrawal of his licence to practise medicine. The Commission therefore accepts that in this respect domestic remedies were exhausted.         However, the Commission notes that the proceedings here in question lasted only from March 1989 until April 1991.   This period does not in the circumstances of the present case appear to be excessive.         The Commission therefore concludes that the present complaint does not disclose any appearance of a violation of the Convention and must be rejected as being manifestly ill-founded in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.   II.    Insofar as the applicant complains that in the civil proceedings a default judgment was given against him although he had informed the court that he was sick and had an appointment at a medical clinic the Commission notes that according to the findings of the appellate court the applicant had failed to give this information on time and also had failed to show that it had been impossible for him to be represented by another person.         The Commission cannot in these circumstances find that a fair hearing by an impartial tribunal was denied to the applicant. There is consequently no appearance of a violation of Article 6 (Art. 6) or of other provisions of the Convention invoked by the applicant in this context. It follows that this part of the application has to be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the Convention as beeing manifestly ill-founded.         For these reasons, the Commission unanimously         DECLARES THE APPLICATION INADMISSIBLE   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                        (C.L. ROZAKIS)