CEDH · CASELAW;CLIN;ENG — 13 février 2003

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France - 49636/99 Judgment 13.2.2003 [Section II] Article 6 Civil proceedings Article 6-1 Access to court Court regarding itself as bound by the opinion of a Minister: violation Article 34 Victim Partial reparation of alleged violation: preliminary objection dismissed Facts : The applicant, a French national holding the Algerian State diploma of doctor of medicine, applied to be registered on the roll of the French Medical Council. Her application was refused on the ground that she did not hold the French diploma of doctor of medicine, which was a requirement under the Code of Public Health. The applicant reapplied, relying this time on the application of the government declarations of 19 March 1962 on Algeria, known as the "Evian Accords", and in particular Article 5 of the government declaration of 19 March 1962 on cultural co-operation between France and Algeria, which laid down the principle of the automatic equivalence of French and Algerian diplomas provided that the courses followed were similar. Upon the rejection of her application by the Medical Council she brought an action in the Conseil d'Etat on the ground of abuse of authority. At the request of the Conseil d'Etat , the Ministry of Foreign Affairs submitted observations. It indicated therein that at the material time the provisions of Article 5 were not applied by the Algerian authorities when they received requests from French nationals holding diplomas awarded in France with the result that those provisions could not be applied for the benefit of the applicant. When the applicant became apprised of those observations, she produced statements in the Conseil d'Etat from various Algerian authorities establishing that diplomas obtained in France by French practitioners were automatically recognised as valid in Algeria. In April 1999 the Conseil d'Etat dismissed the applicant's action on the ground that the Ministry of Foreign Affairs had stated that Article 5 of the government declaration of 19 March 1962 could not be considered to be in force on the date of the contested decision owing to the lack of reciprocal application on the part of Algeria. In the meantime, the applicant had been granted permission to practise medicine in France on the basis of the year 1997 by a ministerial decree of January 1999 based on the Code of Public Health. In April 1999 she was registered on the roll of the Medical Council on the basis of the year 1997. Law : Article 6 – On the question of her continued status of “victim”: once the applicant had been granted permission to practise medicine in France, none of the competent authorities recognised, explicitly, or even implicitly, that there had been a violation of Article 6 § 1 of the Convention as alleged by the applicant in her application. Furthermore, the authorisation to practise medicine in France had not eliminated in substance the alleged unfairness of the procedure followed in the Conseil d'Etat owing to the preliminary reference made to the Minister of Foreign Affairs. Even allowing that the authorisation obtained by the applicant to practise medicine in France constituted reparation, that authorisation had only been granted in 1999, on the basis of the year 1997 and the procedure about which the applicant complained had been in 1995, with the result that the reparation was only partial. Therefore, since the national authorities had not accepted - either expressly or in substance – or made reparation in full for the violation alleged by the applicant, she was still entitled to claim that she was a victim. Applicability of Article 6 § 1: where legislation made access to a profession subject to certain conditions and the person concerned satisfied those conditions, that person had an entitlement to accede to that profession. In this case, the dispute concerned the implementation of Article   5 of the 1962 government declaration. Apart from the nationality condition, the Code of Public Health made access to the profession of doctor in France conditional on the possession of diplomas, whereas, in that respect, the Health Minister could grant individual authorisations to practise medicine to a number of practitioners who did not fulfil the legal requirements, in particular in the matter of diplomas. The applicant argued that, by virtue of Article 5 of the 1962 government declaration, she satisfied the requirements for direct registration on the roll of the Medical Council in France; since she fulfilled the nationality requirement, the applicant maintained that she would also have fulfilled the second requirement if her diploma had been recognised as equivalent on the basis of an international treaty. Since, according to the case-law of the Conseil d'Etat , the 1962 government declaration had to be considered an international convention, its provisions should, in principle, prevail over national law. It followed that the applicant could reasonably argue that if Article 5 of the government declaration had been regarded as being in force, the Algerian diploma that she had obtained in 1969 should have been declared to be automatically valid in France, thus enabling her to satisfy the requirement for a diploma laid down by the Code of Public Health. The applicant would then have been entitled to be registered straight away on the roll of the Medical Council and to practise medicine in France. In short, the applicant had an arguable claim that French law conferred on her the right to be registered on the roll of the Medical Council and therefore to practise medicine in France. As a result, Article 6 applied. The right to a "hearing": in accordance with its case-law, the Conseil d'Etat had relied entirely on an authority of the executive in order to solve the problem it faced of the applicability of the treaties. However, even if consultation of the Minister might seem necessary in order to assess the condition of reciprocity, the practice of the Conseil d'Etat of making a preliminary reference on the applicability of a treaty obliged it to follow the opinion of the minister – that is to say, the opinion of an authority external to it and, moreover, part of the executive – without submitting that opinion to scrutiny or to discussion involving both parties. The interposition of the ministerial authority, which had been determinative of the outcome of the court proceedings, was not open to any appeal from applicant, who, moreover, had no possibility to state her views on the use of the preliminary reference or on the wording of the question or to have aspects of her response to the question considered or to reply to the minister in this way, which might have been useful or even decisive in the eyes of the court. In fact, when the applicant became apprised of the observations of the Minister of Foreign Affairs, she adduced before the Conseil d'Etat several items of factual evidence which proved in her opinion that the Algerian government had in fact implemented the government declaration of 1962. However, the Conseil d'Etat had not even considered that evidence and had therefore been unwilling to assess whether it was well founded. The Conseil d'Etat had considered that it was not for it to assess whether Algeria had implemented the 1962 government declaration or to infer itself implications of a possible non-application of that text; it had based itself solely on the opinion of the Minister of Foreign Affairs. In so doing, the Conseil d'Etat had considered that it was bound by the opinion of the Minister of Foreign Affairs; it had therefore voluntarily deprived itself of the power to examine and take account of factual evidence that could have been crucial for the practical resolution of the dispute before it. Accordingly, the applicant could not be held to have had access to a court which had, or had given itself, sufficient power to consider all the relevant questions of fact and of law in order to decide the case or, in other words, to a court with power to deal with all aspects of the case. Conclusion : violation (six votes to one) Article 41 – The Court awarded the applicant € 17 000 for non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes