CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 janvier 1998

.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. 30406/96                       by Otto Herman NYYSSÖNEN                       against Finland         The European Commission of Human Rights (First Chamber) sitting in private on 15 January 1998, the following members being present:              MM     N. BRATZA, Acting President                  M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs    M. HION            Mr     R. NICOLINI              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 25 September 1995 by Otto Herman NYYSSÖNEN against Finland and registered on 8 March 1996 under file No. 30406/96;         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 Finnish citizen, born in 1935. He resides in Helsinki.         The facts of this case, as submitted by the applicant, may be summarised as follows.         The applicant is a doctor of medicine, specialising in the treatment of cancer. Besides the generally acknowledged forms of treatments, he also uses alternative medical treatments which allegedly are not widely acknowledged by doctors of medicine.         In 1993 the National Board of Medicolegal Affairs (terveydenhuollon oikeusturvakeskus, rättsskyddscentralen för hälsovården), hereinafter called "the Board", received a number of complaints against the applicant concerning his professional qualifications. On this basis the Board decided, on 3 November 1993, to ask the County Administrative Board (lääninhallitus, länsstyrelsen) of Uusimaa to carry out an investigation into the applicant's medical conduct and his capability to practise.         In order to inform the applicant of the above measure the Board requested the police to deliver a letter to that effect to the applicant. The letter was furthermore a means of informing the applicant that the investigation was being carried out in order to decide whether or not to prohibit him from practising. On 31 January 1994 the police returned the letter to the Board as they had not been able to reach the applicant.         On 23 February 1994 the County Administrative Board tried to conduct an inspection of the applicant's office but the applicant was not present. It appears that the report concerning this indicated that the applicant had left the premises in order to prevent the examination, something which later turned out to be wrong.         On 31 March 1994 the Board sent a letter to the applicant informing him that there were reasons to believe that he was unfit to practise medicine and that the County Administrative Board had been requested to conduct an investigation to that effect. The applicant was also informed about the unsuccessful attempts of 23 February 1994 to examine his office. He was furthermore informed that the Board intended to prohibit him from practising medicine as long as the matter was being examined. He was requested to submit his written observations within two weeks to the Board.         On 12 April 1994 the applicant received the above letter from the Board. He immediately objected to the intention to prohibit him from practising his profession. In particular he pointed out that he had not received any other information, and was therefore unaware of any complaints against him. He requested the Board to submit a copy of all the relevant documents. He also complained that he had not been informed of the intended examination of his office on 23 February 1994.         On 22 April 1994 the applicant submitted his observations to the Board in which he maintained that the allegations against him were groundless.         It appears that the Ministry of Social and Health Affairs became involved. In April the Ministry asked the director of the Board for her comments. She replied that the applicant's right to practise his profession had not been withdrawn and that she was otherwise unaware of the matter as she had disqualified herself in all matters concerning the applicant.         On 13 May 1994 the Board received an expert opinion it had ordered from an expert in psychiatry. It appears that it was unfavourable to the applicant and that it suggested that he should be requested to undergo a psychiatric examination.         On 24 May 1994 the Board decided to prohibit the applicant from practising his profession on the ground that he allegedly suffered from a mental illness. He was furthermore requested to undergo a psychiatric examination. The prohibition was provisional and it was to last until the applicant's capability to practise his profession had been finally determined. It entered into force immediately regardless of an appeal which would have no suspensive effect. The applicant maintains that he was not informed of the decision.         It appears that the applicant became aware of the provisional prohibition due to the fact that his patients were unable to obtain a refund of expenses related to medicine prescribed by him. On 19 July 1994 the applicant accordingly asked the Board for an explanation concerning his right to practise medicine.         On 4 August 1994 the Board informed him that he had been prohibited from practising medicine provisionally. The actual decision was not, however, enclosed with the letter.         On 16, 25 and 28 August 1994 the applicant requested the Board to send him the decision and the documents upon which the decision was based. His requests remained unanswered.         In the summer of 1994 several psychiatric examinations were carried out at the applicant's own request. The results of these examinations which became available on 7 September 1994 showed no signs of mental abnormalities.         On 6 September 1994 the applicant saw the decision and the documents on which the decision was based as he went to read the documents in the archive of the District Court of Helsinki (käräjäoikeus, tingsrätt).         On 13 September 1994 the applicant appealed against the decision of the Board to the Supreme Administrative Court (korkein hallinto- oikeus, högsta förvaltningsdomstolen). He complained that the decision violated his professional rights and that he had not had a fair hearing. As the Board had not informed him of the decision he maintained that he had been wrongfully denied his right to appeal and his right to practise his profession. He stated that the decision was not based on facts but on theoretical arguments and differences of opinion concerning the methods of treating cancer. He also noted that in its decision the Board had requested him to undergo a psychiatric examination but had not done anything to have this examination carried out. This violated his right to a fair hearing within a reasonable time. The applicant also requested the Supreme Administrative Court to deal urgently with his case as the provisional prohibition to practise medicine endangered his patients. He finally submitted his observations on the alleged misconduct the Board had referred to and maintained that the director of the Board was biased against him and that leaving the Association of Doctors had caused him difficulties.     In addition to the appeal to the Supreme Administrative Court the applicant also asked the Chancellor of Justice to annul the decision of Board. On 26 August 1994 he was informed, however, that the Chancellor could not intervene as the case was pending before the Supreme Administrative Court.         Following the provisional prohibition and while the case was pending the applicant allegedly lost all his patients and his economic situation collapsed. On 8 February 1995 his home was sold by a bank at an auction in order to cover his debts.         On 28 March 1995 the Supreme Administrative Court decided, inter alia, as follows:   (Translation)         "According to the documents submitted to the Board and to       the County Administrative Board, the professional conduct       of [the applicant] was of a kind that the Board had reason       to consider whether the measure referred to in section 3 of       the Medical Practice Act (laki lääkärintoimen       harjoittamisesta, lag om utövning av läkaryrket) in order       to prevent or restrict him from practising medicine, would       have been justified.         However, [in respect of the individual complaints submitted       against him], the applicant has submitted evidence showing       that sufficient reasons have not been put forward to prove       that he has been guilty of the alleged misconduct.       Therefore, and as the medical statement given on       7 September 1994 shows that according to the clinical       examination and the psychiatric tests made there are no       signs of mental illness which could diminish [the       applicant's] ability to practise medicine, the Supreme       Administrative Court finds that there is no reason to       restrict [the applicant's] medical practice on a       provisional basis or to order him to undergo a medical       examination at the psychiatric ward of a public hospital.       Consequently, and as the Board has not been empowered to       temporarily restrict the applicant's medical practice and       to order him to undergo medical examinations, the Supreme       Administrative Court decides, according to sections 15 and       19 of the Medical Practice Act, to quash the decision of       the National Board of Medicolegal Affairs. ..."         The decision of the Supreme Administrative Court was final and entered into force immediately.         On 10 April 1995 the Board sent a letter of information to different pharmacies, the Institute of Social Security and other authorities which deal with doctors' prescriptions stating that the applicant's right to practise his medical profession had been returned to him.         On 31 May 1995 the applicant requested to be informed of the contents of the Register of Professionals in Health Care (terveyden- huollon ammattihenkilöiden keskusrekisteri, centralregistret för hälsovårdpersonal) concerning him. On 16 June 1995 he was informed that he had been registered as being prohibited from medical practice from 24 May 1994 until 28 March 1995. It does not appear that the applicant has taken any action pursuant to the Act on Personal Data Files (henkilörekisterilaki, personregisterlag) in order to have this changed or amended.     COMPLAINTS   1.     Invoking Articles 5 and 8 of the Convention the applicant complains that he was deprived of his right to liberty and security of person by the actions of the National Board of Medicolegal Affairs whereby he was temporarily deprived of his right to practise medicine. In support thereof the applicant also submits that his financial situation collapsed, that attempts were made to search his office and to subject him to a psychiatric examination.   2.     The applicant furthermore complains that his right to freedom of thought has been violated allegedly having been put under pressure by the Board in order to prevent him from manifesting his thoughts in the field of alternative medicine. The applicant invokes Article 9 of the Convention.   3.     The applicant also complains that his right to freedom of expression has been violated as the Board allegedly pressured him professionally in order to prevent him from imparting information and ideas about the alternative medical treatment for cancer. The applicant invokes Article 10 of the Convention.   4.     Under Article 13 of the Convention the applicant complains that he did not have access to an effective remedy as he did not receive copies of the documents necessary for appealing against the decision of the Board. Under this provision he also refers to the independence and impartiality of the courts.     THE LAW   1.     The applicant has referred to a number of problems which all stem from the provisional prohibition to practise as a doctor issued by the National Board of Medicolegal Affairs. Invoking Articles 5 and 8 (Art. 5, 8) of the Convention the applicant complains that the Board's decision deprived him of his liberty and security of person.         There is no indication that the applicant has been deprived of his liberty within the meaning of Article 5 (Art. 5) of the Convention (cf. No. 24722/94, Dec. 10.4.95, D.R. 81-B, pp. 130-135). This provision can accordingly not be applied in this case.         Assuming that the temporary prohibition to practise medicine may have affected the applicant's life so as to fall within the scope of Article 8 (Art. 8), the Commission first notes that the prohibition was quashed by the Supreme Administrative Court. Assuming that the applicant may, after the decision of the Court, still claim to be a victim within the meaning of Article 25 (Art. 25) of the Convention and assuming that he has complied with the requirements of Article 26 (Art. 26) of the Convention, the Commission considers that his complaints do not disclose any appearance of a violation of Article 8 (Art. 8).         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.2.     The applicant complains that his right to freedom of thought has been violated as he has been put under pressure by a public authority to refrain from manifesting his thoughts as a representative of alternative medicine practices which are not widely acknowledged by the medical profession.         The applicant invokes Article 9 (Art. 9) of the Convention which, in so far as relevant, reads as follows:         "1.   Everyone has the right to freedom of thought, ...;       this right includes freedom to change his belief and       freedom, ..., to manifest his ... belief,..."         The Commission is of the opinion that alternative medicine as a manifestation of medical philosophy falls within the ambit of the right to freedom of thought and conscience. The applicant has not, however, submitted any evidence which could lead to the conclusion that he was prevented from manifesting his belief within the meaning of Article 9 para. 1 (Art. 9-1) of the Convention.         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.     The applicant also complains that his right to freedom of expression has been violated as the Board's actions against him were aimed at preventing him from imparting the information and ideas about the alternative medical treatment for cancer.         The applicant invokes Article 10 (Art. 10) of the Convention which, in so far as relevant, reads as follows:         "1.   Everyone has the right to freedom of expression.   This       right shall include freedom to hold opinions and to receive       and impart information and ideas without interference by       public authority ..."         The Commission recalls that the freedom of expression, enshrined in paragraph 1 of Article 10 (Art. 10), constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress (cf. Eur. Court HR, Castells v. Spain judgment of 23 April 1992, Series A no. 236, p. 22, para. 42.). The Commission notes, however, that the applicant has not submitted any evidence which could lead to the conclusion that he was prevented from imparting information concerning the alternative medical treatments or any other information, as distinct from practising medicine.         It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.     The applicant finally complains that he did not have access to an effective remedy. He also refers to the independence and impartiality of the courts and invokes Article 13 (Art. 13) of the Convention which reads:         "Everyone whose rights and freedoms as set forth in this       Convention are violated shall have an effective remedy       before a national authority notwithstanding that the       violation has been committed by persons acting in an       official capacity."         The Commission recalls that the applicant had the possibility of bringing his dispute with the National Board of Medicolegal Affairs before the Supreme Administrative Court for final determination. Even assuming that the applicant has an arguable claim under any of the other provision of the Convention and that he can still claim to be a victim of a violation, the Commission is satisfied that the Supreme Administrative Court provided an effective remedy within the meaning of Article 13 (Art. 13) of the Convention. In so far as the applicant maintains that this court lacked independence or in its decision showed bias against him the Commission considers that these allegations are unsubstantiated.         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.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.           M.F. BUQUICCHIO                             N. BRATZA          Secretary                             Acting President    to the First Chamber                      of the First Chamber