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
Full & Egal Universal Law Academy