FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 11187/05
by Knut HAARVIG
against Norway
The European Court of Human Rights (First Section), sitting on 11 December 2007 as a Chamber composed of:
MrC.L. Rozakis, President,
MrL. Loucaides,
MrA. Kovler,
MrK. Hajiyev,
MrD. Spielmann,
MrS.E. Jebens,
MrG. Malinverni, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 8 March 2005,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Knut Haarvig, is a Norwegian national who was born in 1966 and lives in Arvikk, Sweden. He was represented before the Court by Mr T. Randby, a lawyer practising in Oslo. The Norwegian Government (“the Government”) were represented by their Agent, Mrs F. Platou Amble, Attorney, Attorney General’s Office (Civil Matters).
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In the spring of 1997 the applicant graduated as a medical doctor. On 15 July 1997 he was granted a licence to perform duty service (turnustjeneste) at a hospital and thereafter he and a friend started to serve at the Østfold Central Hospital.
On 1 May 1998 the applicant was arrested and detained on remand for six days due to his and a friend’s involvement in two incidents, which included notably an attempt of burglary, violence against the police and consumption of hashish and ecstasy.
On 29 May the State Health Inspectorate notified the applicant that they considered suspending and withdrawing his duty service licence, following which the applicant withdrew from his duty service and was granted special leave with salary, until he went on sick leave in September 1998.
On 16 December 1998 the Fredrikstad City Court (byrett) convicted the applicant for his involvement in attempts of burglary (Articles 267 and 268), obstruction of the police in their attempt to arrest his accomplice (Article 127), violence against the police (Article 228) and consumption of hashish and ecstasy (section 31 of the Medicines Act) and sentenced him to five months’ imprisonment (unconditional). On the other hand, the City Court rejected the prosecutor’s request to sentence the applicant under Article 29 (2) of the Penal Code to a loss of right to practice as a doctor.
The applicant appealed against the conviction but the Borgarting High Court (lagmannsrett) refused him leave to appeal on 9 February 1999. As the applicant did not lodge an appeal against that decision within the statutory two week time-limit (running from notification), the decision became final on 23 February 1999 or on some date shortly thereafter.
The applicant served his prison sentence from April to June 1999. Thereafter he was again on sick leave.
In the meantime, on 21 January 1999, the applicant made a request for being re-instated as an intern but, on 18 February 1999, the Health Inspectorate (Helsetilsynet) decided to suspend his licence under section 9 pending a possible revocation under section 8 of the Medical Practitioner Act 1980 (Legeloven, hereinafter referred to as “the 1980 Act”). The decision was taken primarily on the ground of the matters in respect of which he had been convicted and which were deemed “conduct unworthy of a doctor” for the purposes of section 8. Regard was also had to certain irregularities noted with regard to various instances of prescription of medicines and the storage of medical journals, which, it is undisputed, played a secondary part in the decision.
On 13 August 1999 the applicant instituted proceedings before the Oslo City Court asking it to quash the suspension of 18 February 1999. The Court notes that, pursuant to section 11 of the 1980 Act, such an action was to be examined under Chapter 30 of the Code of Civil Procedure concerning judicial appeals against administrative decisions.
On 5 January 2000 the Health Inspectorate repealed the suspension considering that the applicant was no longer deemed unsuited to perform the profession of medical doctor and issued a disciplinary warning. In May 2000 he ended his sick leave and resumed his duty service.
In view of this change, the applicant altered his suit before the City Court to concern a claim for compensation on account of the suspension (section 12 of the 1980 Act).
On 6 March 2002 the City Court rejected the applicant’s compensation claim, finding that his suspension had not been unlawful or contrary to Article 4 of Protocol No. 7 to the Convention.
On appeal, that judgment was upheld by the Borgarting High Court on 13 October 2003.
The applicant’s further appeal was rejected by the Supreme Court (Høyesterett) on 8 September 2004. The Supreme Court unanimously found that the suspension did not violate Article 4 of Protocol No. 7, but was divided (three in favour and two against) as to whether the suspension could be regarded as lawful under the 1980 Act notwithstanding the City Court rejection in the trial of the prosecution’s request to deprive the applicant of his right to practice.
Mrs Justice Stabel, who gave the reasons for the majority, held, in so far as the issue of double jeopardy under Article 4 of Protocol No. 7 was concerned, that the suspension did not constitute a criminal matter attracting the application of this provision, having regard to the three criteria for “criminal charge” in Article 6 of the Convention set out in the Engel and Others v. the Netherlands judgment of 8 June 1976 (Series A no. 22). Therefore, the revocation or the suspension of a licence to practice as a doctor, on the ground that the legal conditions for practicing no longer were fulfilled, did not constitute a criminal punishment for the purposes of Article 4 of Protocol No. 7 to the Convention, which therefore did not apply. The minority agreed with this conclusion.
In so far as concerned the issue under Article 4 of Protocol No. 7, Mrs Justice Stabel’s reasoning, which the other justices of the majority endorsed in the main, included the following observations:
“(34)It would in my view be useful to start by providing an overview of the Norwegian system for granting and revoking permits to practise as a doctor. I should note that authorisation is the term used for the most comprehensive permit to practise as a doctor. A licence, including an intern’s licence as applicable in our case, on the other hand, provides more limited rights. Nevertheless, the legal issues raised by the case will be the same.
(35)According to section 2 (3) of the 1980 Act of 1927, a precondition for the granting of an authorisation to practise as a doctor was that the candidate was ‘of good conduct’. Under section 16 of the Act an authorisation could be withdrawn by civil judgment where the doctor was considered unfit to conduct his practice on the grounds of insanity or weakening of the mental faculties or abuse of strong drink or anaesthetising agents. The grounds for loss of authorisation were listed in exhaustive detail and accordingly legal action with respect to revocation could not be brought were the doctor subsequently to be found guilty of breach of the requirement as to good conduct. In the event of conviction of criminal offences, however, deprivation could take the form of a disqualification pursuant to Article 29 of the Penal Code. This general provision, which is now Article 29 (2) of the Penal Code, provides the legal authority to sentence a person found guilty of a criminal offence in the following way if the public interest so requires:
‘Loss for a specific period not exceeding five years or in perpetuity of the right to hold office or to carry out any activity or occupation that the defendant has shown himself or herself to be unfit for or might conceivably abuse or for which a high degree of public confidence is required. ...’
(36)In the 1980 Act, which applies in our case, the requirement as to good conduct as a precondition for authorisation and licensing was continued, with the difference that breaches of this condition would now constitute direct grounds for revocation under the Act. Section 2 (4) made it a condition for the grant of authorisation or a licence that the medical practitioner was not in a situation that could lead to the revocation of the authorisation or licence. This was regulated in section 8, the first paragraph of which read as follows:
‘An authorisation or licence may be revoked if a doctor is not fit to practise medicine on the grounds of serious mental illness, psychological or physical debility, long absence from the profession, the misuse of alcohol, drugs, or other substances with similar effects, grave lack of professional insight, improper medical practice, or conduct unworthy of a doctor.’
(37)Section 9 provided the legal authority for the suspension of an authorisation or licence where there were just and sufficient causes to suppose that grounds existed for revocation. Under section 10, the decision to revoke was no longer taken by the courts but by the Ministry, generally after an opinion had been obtained from the Norwegian Medical Council. This authority was subsequently delegated to the Directorate of Health/ Health Inspectorate. According to section 11, the decision could not be appealed but it could be brought before a court of law, which could review all aspects of the matter. If a suspension or revocation proved to be invalid or was set aside on other grounds, section 12 provided that the doctor could claim damages for losses sustained in accordance with the usual rules.
(38)This system is continued in the current Act - the Health Personnel Act of 2 July 1999 No. 64 - which came into force on 1 January 2001. ...
(39)Generally the system exists in parallel with the system of sanctions provided for under criminal law. This relates to the different guilt requirements under the two systems and to the fact that the objectives and subjects for assessments are different, see Proposition No. 13 to the Odelsting (1998-1999), pp. 185 and 187. It is assumed that as a general rule the public health authorities may consider revocation, even if health personnel have not been disqualified by judgment in a criminal case. It is emphasised that the regulatory authority shall be concerned with protecting patients against unqualified practitioners, not with punishment.
(40)In light of the inter-relationship between the regulations discussed above, [the applicant]’s alternative submission relating to Article 4 of Protocol No. 7 may also have a bearing on corresponding questions under the current Act. Accordingly, in my view it is appropriate to consider this aspect first.
(41)The question is whether the suspension decision, which was adopted after [the applicant] had been convicted of the actions in question, but acquitted of the plea that he be disqualified, must be viewed as a re-prosecution in contravention of Article 4 of Protocol No. 7. That the facts underlying the suspension decision in all essential respects are the same as those underlying the criminal conviction, is not disputed.
(42)Before I continue I reiterate that the suspension of the licence presupposed the existence of a reasonable basis for assuming that ‘grounds existed for revocation’. Although this case concerns the suspension of a licence, and a revocation, the real issue is nevertheless whether Article 4 of Protocol No. 7 serves as an obstacle to the revocation of a licence where a judgment in a criminal case has already been rendered with respect to the same actions and where the plea for disqualification has not been allowed.
(43)In light of Supreme Court case law as it now stands, the issue that must be considered will be identical to the question of whether this constitutes punishment pursuant to Article 6 of the Convention, see most recently the judgment of 8 June 2004 in case No. 2003/1640 HR-2004-00997-A paragraph 54. As noted in paragraph 40 of the said judgment, this question must be decided on the basis of the so-called Engel criteria, (see Engel and Others v. the Netherlands, judgment of 8 June 1976, Series A no. 22). How is the situation classified under national law, the nature and purpose of the statutory rule that was applied and the content and severity of the sanction in question.
(44)It will be apparent from my introductory discussion that neither the revocation nor the suspension of a permit to practise as a doctor will constitute punishment under Norwegian law.
(45)As regards the second Engel criterion - the nature and purpose of the provision - it is clear to me that the theme for assessment will be the standard specified in section 9 of the 1980 Act by reference to section 8, which I have reproduced in my introductory overview. The overarching standard is whether the doctor is unfit to practise his profession, in our case on the grounds of ‘conduct unworthy of a doctor’. Although the conduct to which the standard is directed will frequently involve - and in our case in fact does involve - criminal actions, I am not inclined to agree with [the applicant] in his submission that it is the criminal actions that make up the nature of the provision. The theme for assessment is whether the doctor satisfies the requirements for holding a permit to practise the profession and continuing to practise the profession.
(46)The provisions of the 1980 Act are aimed specifically at a professional group that is dependent upon a special degree of confidence in the mind of the public and accordingly requires a public permit in order to practise. The legislative history of the Act strongly emphasised the need for doctors to observe a high professional and ethical standard and the need for society to control who practises the profession by requiring a public permit to be held and, moreover, that such permits may be revoked if the preconditions are no longer fulfilled (see inter alia NOU (Norwegian Official Report) 1976:1 pp. 26 and 32). The Select Committee therefore proposed the continuation of the existing scheme, but added that a breach of the precondition as to good conduct could result in revocation. The Ministry concurred (see Proposition No. 1 to the Odelsting (1979-80), p. 44). The Select Committee emphasised that the grounds for loss of an authorisation or licence would need to encompass more than criminal actions. The Committee stated as follows:
‘There should also be room for revoking an authorisation or licence in the case of conduct or actions that are not criminal, but this should occur only rarely. On the other hand, not every criminal action should lead to revocation; here as in other contexts the doctor must be found unfit to practise the profession. The blameworthy circumstances must normally relate to his or her medical practice. Nevertheless, there may be instances in which conduct outside the profession may entail that the doctor does not enjoy the necessary confidence, for instance if he or she commits theft, embezzles in the context of his or her practice, defamation or assault of other persons etc.’
(47)As will be apparent from my introductory discussion of the provisions this object has at all times been of central importance and it is now expressly provided for in the purpose clause of the Health Personnel Act. The object of the provisions is not to punish persons who are in breach of the standard but rather to prevent them from causing their patients harm or violating the relationship of trust that must of necessity exist between the general public and the medical profession. This is expressly emphasised in Proposition No. 1 to the Odelsting (1979-80), p. 39, second column. In my assessment this is a long way from the domain of criminal law, a fact that the existence in most European countries of equivalent arrangements serves to emphasise.
(48)[The applicant] has submitted that disqualification pursuant to Article 29 (2) of the Penal Code, which is described as punishment, far and away serves the same purpose as the revocation provisions of the 1980 Act. This is indisputably correct, but will nevertheless not be of particular significance. I refer here to the Norwegian Supreme Court Reports (Norsk Retstidende- “Rt.”) 2003 p 264, paragraph 41, where a parallel of this nature was found not to be decisive with respect to rights vesting in an individual permit issued by the public authorities. Nor does the fact that the sanction is for actions that have already been performed change my assessment that this is primarily a civil law sanction. Finally I should also note that there is no direct link between the sanction in question and the preconditions for punishment, as was found to be the case in Rt. 2003 p.1827, paragraph 69. As I have already noted, the overarching and decisive point is whether the doctor in question is unfit to practise the medical profession.
(49)The third Engel criterion - the content and severity of the sanction - cannot lead to a different conclusion. Clearly, depriving a doctor of the right to practise will have a serious impact on that doctor. However, in decisions of this type, often referred to as disciplinary decisions, the point of departure has been that the sanctions in question must be very serious - in practice prison sentences, see Rt. 2002 p. 509 and, at p. 520, reference to Inocêncio v. Portugal (application no. 43862/98) , see also Rt. 2003 p. 1100, paragraph 53. A common point of departure has been that the decisions in question have been directed at a limited circle of people.
(50)No decision by the European Court directly addresses the question of the revocation of a public permit to practise a profession. The State has referred to a number of dismissal decisions that indicate that this lies outside the domain of criminal law. As regards the revocation of a permit to conduct business, the European Court held as follows in its dismissal decision in Manasson v. Sweden (application 412865/98), a case concerning the revocation of a taxi licence on the grounds of tax offences:
‘... The Court considers that the revocation of the licence did not constitute a determination of a criminal charge against the applicant. Although it may be regarded as a severe measure, what was decisive for the revocation was the applicant’s suitability to run a commercial taxi business, and, more specifically, whether he fulfilled the conditions therefore under administrative law provisions. Thus, the revocation cannot be characterised as a penal sanction and the nature of the relevant proceedings cannot be regarded as criminal ...’
(51)The decision then refers to the Tre Traktörer AB v. Sweden judgment of 7 July 1989, where the revocation of a liquor licence on the grounds of irregularities did not constitute a penal sanction.
(52)In European legal tradition the exercise of certain activities requires a public licence. The issuing of licences of this nature is, typically, an administrative activity. It would be inconsistent if the same did not apply to the revocation - reversal - of a licence of this nature where a recipient no longer fulfils the preconditions for holding the licence.
(53)Against this background it is clear to me that the revocation and suspension of a licence to practise as a doctor on the grounds that the statutory and necessary preconditions for continuing to practise this activity are no longer present does not constitute a penal sanction in the European Court’s view. The question regarding the concrete application of Article 4 of Protocol No. 7 will therefore not arise.”
COMPLAINT
The applicant complained under Article 4 of Protocol No. 7 that the suspension of his licence to carry out duty services as a medical doctor constituted double jeopardy in breach of this provision.
THE LAW
The applicant alleged a violation of Article 4 § 1 of Protocol No. 7, which reads:
“No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”
A. Submissions of the parties
1. The applicant
The applicant submitted that he had been the victim of double jeopardy in breach of the above provision. His licence to practice had been suspended with a view to revocation on the ground of his criminal conviction for offences which had had no connection with his performance as a medical doctor. Quite the contrary there had been general agreement that he performed well in the exercise of his profession. It was precisely for this reason that the City Court had not found any ground for depriving him of his right to practice as a doctor under Article 29 of the Penal Code. Under national law, the imposition of loss of rights under Article 29 of the Penal Code was qualified as a penal measure (see Article 15).
The applicant further pointed out that it was shortly after the High Court had refused him leave to appeal against his conviction by the City Court that the health authorities had decided to suspend his licence. As also mentioned by the Supreme Court, it was not disputed that the factual basis for the suspension of the applicant’s licence in all essential elements had been the same as that of his conviction.
The applicant maintained that the consequences of a revocation of his licence under the 1980 Act were identical to those of a deprivation of his rights to practice under Article 29. Likewise, the purposes and the justifications would also have been identical. Despite the fact that the trial court had considered whether loss of rights would be required by the need to preserve the confidence of the public in medical doctors, the health authorities had proceeded to review that very same matter again and had reached the opposite conclusion. In reality the authorities of the respondent State had allowed themselves to try anew exactly the same questions after having been unsuccessful in the first round.
In addition it should be viewed as significant that the applicant’s sentence in the trial would have been considerably milder had he been imposed a loss of rights under Article 29 of the Penal Code.
The Supreme Court had based its decision on the consideration that the relevant provision of the Medical Practitioners’ Act had not been founded on penal justifications. However, the alternative applied in the instant case had for all intents and purposes a reference to the Penal Code, namely that the person who committed criminal acts had displayed conduct unworthy of a medical doctor.
Accordingly, in considering the nature of the offence, regard ought to be had to the acts forming the basis of the offence.
As regards the nature and degree of severity of the sanction, regard should be had to the fact that a loss of rights - the imposition of which was based on the same conditions, had the same consequences and pursued the same purposes - was considered punishment under national law. In any event, these factors and the penal nature of the acts in questions were relevant to the question whether, considering the case as a whole, the suspension of the applicant’s licence had amounted to a criminal measure. The measure had been imposed regardless of the fact that the applicant’s performance of his medical profession had left nothing to be desired.
2. The Government
The Government, disputing the applicant’s arguments, invited the Court to declare the application inadmissible as being manifestly ill-founded.
From the outset the Government pointed out that due to the fact that the applicant had voluntarily waived his internship on 11 June 1998 and had resigned from his duty service at the hospital and had gone on leave, first special leave then on sick leave, the decision to suspend him could await until he requested re-instatement as an intern on 21 January 1999. Soon thereafter, on 18 February 1999, the Health Inspectorate had suspended his licence. That was before the City Court’s judgment gained legal force, which occurred on 23 February 1999 at the earliest, two weeks after notification of the High Court’s refusal of leave to appeal. Therefore, in the Government’s view, there was a sufficiently close connection between the two sets of proceedings in substance and time to regard them as parallel proceedings permitted under Article 4 of Protocol No. 7. In this regard the Government referred to Nilsson v. Sweden (dec.), no. 73661/01, ECHR 2005- and Ouendeno c. France, no 39996/98, (dec.) 9 January 2001.
The Government further argued that, as could be seen from the Supreme Court’s judgment, it was evident that the suspension and revocation of a licence or authorisation to practice as a doctor under sections 8 and 9 of the Medical Practitioners Ac was not viewed as a criminal matter under Norwegian law.
As to the nature of the offence, the Government submitted that a decision to suspend or revoke a licence to practice on the ground of “conduct unworthy of a doctor” ought to be considered a matter of disciplinary law and not a criminal matter, regardless of whether those acts may also lead to criminal proceedings.
In the Government’s opinion, contrary to what was suggested by the applicant, it was irrelevant that the imposition of loss of right to practice under Article 29 (2) of the Penal Code had been considered and rejected in the criminal proceedings against him. The imposition of an Article 29(2) measure was a matter of discretion for the trial court and depended on criminal law considerations, notably the traditional elements in apportioning of criminal sentences, including the personal circumstances of the convicted. These elements would not necessarily be relevant to the question of administrative revocation of a right to practice, where the only material issue was whether in light of the criminal acts in question the doctor was “unfit” for medical practice – or certain kinds of medical practice: Unlike under Article 29(2) of the Penal Code, under section 8 of the 1980 Act partial revocation could be an alternative. For instance, while a conviction for indecent acts could make a doctor unfit for private practice, this might not necessarily be so for certain kinds of hospital team work and his or her licence could be adapted accordingly.
In any event, the Government emphasised that the applicant’s license had been suspended, not revoked. Whereas the 1980 Act contemplated both types of measures, Article 29(2) of the Penal Code only foresaw the latter type. There was certainly nothing to indicate that suspension of a licence to practice medicine, which was precautionary interim measure, had a punitive purpose.
The fact that the issue here concerned suspension, not revocation, was further relevant to the severity of the penalty. Even though the immediate consequences for the right to practice were the same, the preliminary nature of suspension made it a less severe measure. Having regard to the Court’s case-law, the suspension for 10½ months in the present case, on the basis that the statutory conditions for obtaining such a licence were not fulfilled during that time, could clearly not be regarded as so severe as to bring the matter within the criminal sphere.
The Government further disputed that the suspension of the applicant’s license to practice medicine concerned the “same offence(s)” as those grounding the criminal conviction and sentence as they differed in their essential elements. Apart from the absence of a complete overlap between the charges underlying the suspension and the criminal charges, the description of the criminal conduct in the relevant provisions of the Penal Code was very different from the description of the (presupposed) “criminal” conduct in the 1980 Act, “conduct unworthy of a doctor”. Furthermore, criminal guilt was not a condition for the application of section 8 of the Act. Lastly, criminal conduct was not in itself sufficient to bring section 8 of the Act into play since several acts that are punishable under criminal law would not be of a nature or seriousness to warrant the label “conduct unworthy of a doctor”.
B. The Court’s assessment
The Court reiterates that the aim of Article 4 § 1 of Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a final decision.
In the present instance, the applicant’s licence to perform duty service at a hospital was on 18 February 1999 suspended under section 9 of the 1980 Act by the State Health Inspectorate on account of “conduct unworthy of a doctor”. The decision was taken primarily on the ground of his conviction by the City Court on 16 December 1998 for his involvement in attempts of burglary (Articles 267 and 268 of the Penal Code), obstruction of the police in their attempt to arrest his accomplice (Article 127), violence against the police (Article 228) and consumption of hashish and ecstasy (section 31 of the Medicines Act), in respect of which the High Court had refused him leave to appeal on 9 February 1999.
The question is whether, as a result of the latter proceedings, the applicant could be said to have been “tried and punished again in criminal proceedings ... for an offence for which he had already been finally .... convicted in accordance with the law and penal procedure of that State”. In this connection it should be reiterated that the protection of the ne bis in idem is not dependent on the order in which the respective proceedings were conducted; it is the relationship between the two offences which is material (Franz Fischer v. Austria, no. 37950/97, § 29, 29 May 2001).
The first issue to be decided is whether the proceedings relating to the suspension of the applicant’s licence to duty practice concerned a “criminal” matter within the autonomous meaning of Article 4 § 1 of Protocol No. 7. This notion must be interpreted in the light of the general principles concerning the corresponding words “criminal charge” and “penalty” respectively in Articles 6 and 7 of the Convention (see Storbråten v. Norway (dec.), no. 12277/04, ECHR 2007‑... (extracts); Mjelde v. Norway (dec.) 11143/04, 1 February 2007; Rosenquist v. Sweden (dec.), no. 60619/00, 14 September 2004; Manasson v. Sweden (dec.), no. 41265/98, 8 April 2003; Göktan v. France, no. 33402/96, § 48, ECHR 2002-V, and Malige v. France, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII, p. 2935, § 35; Nilsson v. Sweden (dec.), no. 73661/01, ECHR 2005‑). Hence, the Court will have regard to such factors as the legal classification of the offence under national law; the nature of the offence; the national legal characterisation of the measure; its purpose, nature and degree of severity; whether the measure was imposed following conviction for a criminal offence and the procedures involved in the making and implementation of the measure (see Storbråten, Mjelde Malige and Nilsson, all cited above). This is a wider range of criteria than the so-called “Engel criteria” formulated with reference to Article 6 of the Convention.
As regards the legal classification of the matter under national law, the court observes that under the 1980 Act, the powers to suspend a licence such as that in issue was vested in an administrative authority, namely the Health Inspectorate. It was to deal with the matter in accordance with the procedural rules set out in the 1980 Act. A judicial appeal against such a measure was to be examined in accordance with the rules in the Code of Civil Procedure. The Court sees no reason to call into doubt the finding of the Norwegian Supreme Court that the suspension or revocation of an authorisation or licence to practice as a medical doctor on the ground of “conduct unworthy of a doctor” within the meaning of section 8 of the 1980 Act was not a matter of criminal character. As can be seen from its description of the relevant rules, it was primarily a civil law sanction of administrative regulatory character (see paragraphs 34-39, 44 and 48 of the Supreme Court’s judgment quoted above).
As to the nature of the offence under the relevant provision of section 8 of the 1980 Act, the Court observes that it obviously did not apply to the public at large; the issue was whether the doctor was unsuited to practice his or her profession due to “conduct unworthy of a doctor”. The provision, which itself set out a broadly worded professional standard, made no reference to the Penal Code or to any specific offence or category of offences provided for in the Code or in special penal provisions (cf. Nilsson, cited above). As observed by the Supreme Court, even if criminal conduct often would be covered, as was the case here, the issue to be determined was whether the person fulfilled the requirements for being authorised to perform the profession in question, which was a wider assessment. While criminal guilt ordinarily was an essential element for establishing a criminal offence, this was not a prerequisite for an offence under section 8. Moreover, according to the preparatory works, a licence could be revoked even if the conduct was not criminal and, conversely, not all criminal conduct could justify revocation. Normally, the reprehensible conduct would have to concern something related to the exercise of the professional activity, but, at times, even conduct outside the profession could mean that the doctor did not enjoy the necessary confidence, for instance in cases of theft, embezzlement, physical assault or defamation. Thus it does not appear that the establishment of an offence under section 8 was a direct and inevitable consequence of criminal prosecution and conviction of a criminal offence. It was the subject of a separate assessment of whether the person concerned was unsuitable to practice as a doctor.
This was not altered by the fact that in the criminal proceedings against the applicant the City Court had considered and rejected the Public Prosecutor’s request to sentence the applicant to loss of rights to exercise his profession under Article 29 of the Penal Code. Again, as explained by the Government, that was an issue to be determined according to criminal law criteria applicable to sentencing. What is more, in contrast to section 8 of the 1980 Act, Article 29 of the Penal Code did not provide for the suspension of a licence.
Furthermore, the purpose of a section 8 measure was not to punish the person who had breached the norm, but rather to prevent that he or she in future cause damage to his or her patients or breach the necessary confidence between the public and the legal profession. Therefore, when such a question arose, it would in principle be dealt with swiftly. In the present instance, for a period as from May 1998 the applicant had taken leave from his duty service; according to the Government, no urgency to process the suspension issue had arisen until 23 January 1999 when he requested reinstatement.
As to the nature and degree of severity of the measure, the Court notes that the applicant was deprived of his right to perform duty service as a medical doctor in a hospital for a period of 10½ months. It did not prevent him from performing other professional activity (see Storbråten and Mjelde, cited above). In light of this and having regard also to the considerations stated above, the Court does not find that the nature of the sanction was such as to bring the matter within the “criminal” sphere. Although the measure presumably delayed the applicant in his medical career, the Court does not find that what was at stake for him was sufficiently important to warrant classifying it as “criminal”.
In these circumstances, the Court arrives at the same conclusion as the Norwegian Supreme Court, namely that the suspension of the applicant’s licence to duty service did not constitute a “criminal” matter for the purposes of Article 4 of Protocol No. 7 to the Convention.
It may in addition be noted that the proceedings relating to the applicant’s suspension were conducted in parallel with the criminal proceedings against him. The two measures not only pursued different purposes - prevention and deterrence in the case of the first and also retribution in the case of the second, but also, as already explained above, differed in their essential elements (see Storbråten Mjelde and Rosenquist, cited above).
Accordingly, the Court finds that the suspension of the applicant’s licence to duty practice in a hospital did not entail that he was “tried or punished again ... for an offence for which he ha[d] already been finally ... convicted” in breach of Article 4 of Protocol No. 7.
It follows that the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention;
Declares the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy