In the case of Colman v. the United Kingdom*,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention")** and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr J. De Meyer,
Mrs E. Palm,
Mr J.M. Morenilla,
Sir John Freeland,
Mr M.A. Lopes Rocha,
Mr G. Mifsud Bonnici,
Mr J. Makarczyk,
and also of Mr M.-A. Eissen, Registrar,
Having deliberated in private on 24 June 1993,
Delivers the following judgment, which was adopted on that
date:
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Notes by the Registrar
* The case is numbered 2/1993/397/475. The first number is the case's
position on the list of cases referred to the Court in the relevant
year (second number). The last two numbers indicate the case's
position on the list of cases referred to the Court since its creation
and on the list of the corresponding originating applications to the
Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came into
force on 1 January 1990.
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PROCEDURE
1. The case was referred to the Court on 18 January 1993 by the
European Commission of Human Rights ("the Commission"), within the
three-month period laid down in Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 16632/90) against the United Kingdom of Great Britain
and Northern Ireland lodged with the Commission under Article 25
(art. 25) by Richard Colman, a British citizen, on 11 May 1990.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby the United Kingdom
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request was to obtain a decision as to
whether the facts of the case disclosed a breach by the respondent
State of its obligations under Articles 10 and 13 (art. 10, art. 13)
of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that
he wished to take part in the proceedings and designated the lawyer who
would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Sir John Freeland, the elected judge of British nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 27 February 1993 the President drew
by lot, in the presence of the Registrar, the names of the other seven
members, namely Mr R. Bernhardt, Mr J. De Meyer, Mrs E. Palm,
Mr J.M. Morenilla, Mr M.A. Lopes Rocha, Mr G. Mifsud Bonnici and
Mr J. Makarczyk (Article 43 in fine of the Convention and
Rule 21 para. 4) (art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent of
the United Kingdom Government ("the Government"), the Delegate of the
Commission and the applicant's lawyer on the organisation of the
proceedings (Rules 37 para. 1 and 38).
5. On 25 May 1993 the Government communicated to the Registrar the
terms of a settlement that had been reached with the applicant. Two
days later the applicant confirmed his acceptance of the proposal.
The Delegate of the Commission was consulted (Rule 49 para. 2).
By letter received on 10 June, the Secretary to the Commission advised
the Registrar that the Delegate had no comments to make.
6. On 24 June the Court decided to dispense with a hearing in the
case, having satisfied itself that the conditions for this derogation
from its usual procedure had been met (Rules 26 and 38).
AS TO THE FACTS
7. Richard Colman is a medical practitioner in private general
practice.
In 1985 he established in the city of York a practice named the
"Holistic Counselling and Education Centre". The "holistic" approach
to health care involves not just treating patients, but trying to help
them to explore the cause of their problems and to take more
responsibility for their remedy. In 1987 he contemplated the insertion
of brief, factual advertisements about his practice in local
newspapers. Recognising that this did not appear to be consistent with
the guidance issued in November 1986 by the General Medical Council
(G.M.C.), he wrote in March 1987 seeking its advice. He also requested
the G.M.C. - which is the statutory governing body of the medical
profession, responsible for ensuring that standards of professional
conduct are maintained - to review the existing rules on practice
advertising and professional ethics.
In May 1987 the applicant was informed by the G.M.C. that it
declined to review its recently amended guidance and that to advertise
in the local press could lead to disciplinary action against him.
8. In August 1987 Dr Colman instituted legal proceedings seeking
a declaration that the G.M.C.'s decision and policy on the
dissemination of information by doctors were unlawful. He was
unsuccessful before the High Court (November 1988) and thereafter
before the Court of Appeal (December 1989). His petition to the House
of Lords for leave to appeal was rejected in February 1990.
9. In the meantime, in November 1987, the Government submitted to
Parliament a White Paper proposing a loosening of the restraints on
doctors' rights to advertise their services. A report by the
Monopolies and Mergers Commission, presented to Parliament in
March 1989, concluded that the G.M.C.'s rules in this respect were not
in the public interest. The Government accepted this report and asked
the Director General of Fair Trading to negotiate with the G.M.C. to
implement the report's recommendation to relax the restrictions on the
publication of factual information about medical practitioners.
10. In the same month as Dr Colman applied to the Commission, in
May 1990, the G.M.C. revised its advertising rules to allow, inter
alia, the publication in the press of factual information about
doctors' services.
PROCEEDINGS BEFORE THE COMMISSION
11. Dr Colman lodged his application (no. 16632/90) with the
Commission on 11 May 1990. He claimed that the G.M.C.'s pre-May 1990
policy on advertising in the medical profession, as it applied to him,
was in violation of his right to freedom of expression as guaranteed
by Article 10 (art. 10) of the Convention. He also maintained that,
contrary to Article 13 (art. 13), he had no effective remedy under
English law in respect of his complaint under Article 10 (art. 10).
12. The Commission declared the application admissible on
5 September 1991. In its report of 19 October 1992 (Article 31)
(art. 31) the Commission expressed the opinion that there had been no
violation of Article 10 (art. 10) (eleven votes to eight) or of
Article 13 (art. 13) (eighteen votes to one). The full text of the
Commission's opinion and of the three dissenting opinions contained in
the report is reproduced as an annex to this judgment*.
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* Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 258-D of Series
A of the Publications of the Court), but a copy of the Commission's
report is available from the registry.
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AS TO THE LAW
13. The Registrar was advised on 25 May 1993 by the Agent of the
Government that the applicant was prepared to accept the following
proposal for a friendly settlement of the case:
"... without any admission by the Government that a breach
of the Convention has occurred and on the conditions that the
case is withdrawn from the Court and no further cases are
instituted against the Government in respect of this matter in
any national or international court, the Government pay the
applicant £12,500".
14. Acceptance of this proposal was confirmed by the applicant's
representative in a letter received by the Registrar on 27 May.
15. The Delegate of the Commission was consulted in accordance with
Rule 49 para. 2 of the Rules of Court. By letter received on 10 June
the Secretary to the Commission informed the Registrar that the
Delegate had no comment to make on the settlement of the case or on its
being struck off the Court's list.
16. The Court takes formal note of the friendly settlement reached
by the Government and Dr Colman. It discerns no reason of public
policy (ordre public) why the case should not be struck out of the list
(Rule 49 paras. 2 and 4).
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to strike the case out of the list.
Done in English and in French, and notified in writing under
Rule 55 para. 2, second sub-paragraph, of the Rules of Court on
28 June 1993.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
Full & Egal Universal Law Academy