AS TO THE ADMISSIBILITY OF
Application No. 19913/92
by Johannes PROBST
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 11 January 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
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 2 June 1991 by
Johannes Probst against Germany and registered on 29 April 1992 under
file No. 19913/92;
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 German citizen born in 1921 and living in
Iserlohn.
He has lodged a previous application (no. 14186/88) complaining
of having been excluded from practising as a medical practitioner
within the social security system, a measure which allegedly deprived
him of all means of existence so that he had to live in a shelter for
the homeless. He alleged violations of Articles 3 and 6 of the
Convention. The application was rejected by the Commission on
7 February 1990 as being manifestly ill-founded.
The present application concerns two distinct complaints, namely,
on the one hand, a complaint about the withdrawal of the applicant's
licence to practise medicine and on the other hand, a complaint about
civil proceedings in which the applicant was the losing party.
I.
As far as the applicant's licence to practise medicine is
concerned an order was given against the applicant by the competent
authority on 14 March 1984 suspending his right to practice as a
medical doctor (Ruhen der Approbation). This measure was taken on the
ground that in view of a disciplinary and criminal conviction and other
incidents, the applicant had shown objectionable behaviour which gave
rise to doubts as to his fitness to exercise the medical profession in
a proper manner. It was added that the applicant had refused to
undergo a psychiatric examination.
On 24 April 1986 the applicant brought an administrative court
action claiming that the order suspending him from medical practice was
null and void. This action was to no avail.
A further action brought on 13 May 1986 with a view to having the
order set aside was likewise dismissed by the Administrative Court
(Verwaltungsgericht) in Arnsberg on 18 June 1986.
The applicant's appeal (Berufung) was rejected by the
Administrative Court of Appeal for North-Rhine-Westfalia
(Oberverwaltungsgericht) on 4 December 1986.
In the meantime on 30 July 1986 the applicant had brought another
administrative court action requesting the Administrative Court to set
aside the order suspending him from medical practice. This action was
rejected by the Administrative Court in Arnsberg on 10 October 1986.
The applicant renewed his requests and by judgment of
27 January 1989 the Administrative Court eventually ordered the
authority to set aside the order suspending the applicant's right to
practice medicine. It is stated in this decision that the new action
which the applicant had introduced on 26 February 1988 was well-
founded. The Court had regard to a medical expert opinion submitted
in criminal proceedings, brought against the applicant, on the question
of the applicant's criminal responsibility. In view of that opinion
the court noted that the applicant had an abnormal personality
structure but there was no indication that he was unfit to practise
medicine for reasons of illness or drug addiction. The suspension
order was therefore, in the court's opinion, no longer justified and
not an adequate measure provided for by the law to prevent the
applicant from exercising the medical profession.
However, on 30 March 1989 the competent authority withdrew the
applicant's licence to practise medecine (Widerruf der Approbation) on
the ground that the applicant was unreliable and untrustworthy to
exercise the medical profession.
The applicant's administrative court action against this order
was rejected by the Arnsberg Administrative Court on 23 February 1990.
Already on 23 May 1989 the court had refused to grant the applicant
injunctive relief by way of a stay of execution of the order
withdrawing his licence. Having regard to the applicant's conviction
by a penal chamber of the Hagen Regional Court on 12 May 1987 and the
above mentioned medical expert opinion submitted in the course of the
criminal proceedings, the Administrative Court found that the applicant
had an abnormal personality structure with a diffuse conception of
reality. He had been in constant conflict with his environment. As
a consequence he had been, inter alia, convicted of fraud committed in
connection with the exercise of his profession. Vis-à-vis the
authorities he had often an aggressive and inflexible, unreasonable
attitude. Furthermore, in spite of his obligation to respect medical
secrecy he threatened two of his patients with turning them in to the
police as drug addicts if they did not pay his fees.
The applicant's appeal (Berufung) was rejected by the
Administrative Court of Appeal of North-Rhine-Westfalia on
17 July 1990. The court refused to grant leave to appeal on points of
law.
The applicant's request to be granted legal aid in order to
request the Federal Administrative Court (Bundesverwaltungsgericht) to
grant him leave to appeal on points of law was rejected by that court
on 21 January 1991.
The applicant then lodged a constitutional complaint against the
decision of 21 January 1991. Inter alia, he complained of the length
of the proceedings.
On 15 April 1991 a group of three judges of the Federal
Constitutional Court (Bundesverfassungsgericht) refused to consider the
merits of this complaint stating that the applicant had failed to
substantiate his petition.
COMPLAINTS
The applicant complains under Articles 3 and 6 of the Convention
that he was not given a fair trial and that the proceedings relating
both to the suspension and the withdrawal of his licence to practise
medicine globally exceeded a reasonable time since they lasted a total
of seven years and four months.
II.
On 30 September 1993 a default judgment was given against the
applicant by the District Court (Amtsgericht) in Iserlohn ordering him
at the request of his landlord to remove an aquarium installed in his
apartment.
The applicant lodged a complaint (Einspruch) against the default
judgment alleging that he was sick and had to be examined in a medical
clinic. He requested that the proceedings be suspended. On
3 November 1993 he was summoned to a hearing of the case on
2 December 1993. It was pointed out in the summons that he had not
shown that he was unfit for the proceedings (verhandlungsunfähig). In
any event he could be represented by any person of age or a lawyer.
On 2 December 1993 his complaint was rejected, again by judgment on
default.
The applicant's request to be granted legal aid in order to
lodge an appeal (Berufung) was rejected by the Hagen Regional Court on
20 January 1994 as offering no prospects of success. The court
considered that the applicant had not shown that there was a justified
reason for his not attending the hearing of 2 December 1993. The court
noted that the applicant had been informed of the date of the hearing
by letter of 6 November 1993. This letter had been served on him
personally. However, he did not react before 30 November 1993. His
letter written on that day reached the lower court on the day of the
hearing. In these particular circumstances the applicant should have
informed himself whether his request would and could still be taken
into account. If not he should have seen to it that he was represented
by proxy as he had been advised to do. He had however not stated any
reason why he omitted to proceed in that manner.
The applicant then lodged a constitutional complaint which was
rejected in accordance with Sections 93 a and 93 b of the Federal
Constitutional Court Act (BVerfGG) on 27 April 1994 by a group of three
judges of the Federal Constitutional Court.
COMPLAINTS
The applicant complains that a default judgment was given against
him. He argues that in view of his illness he did have a valid reason
to request that the proceedings be suspended. He therefore considers
that in these circumstances he was not given a fair trial by an
impartial tribunal and alleges a violation of Article 6 of the
Convention. He invokes in addition Article 3 of the Convention,
pointing out that he is an old and sick person and that the aquarium
is of particular value to him.
THE LAW
I. The applicant has complained that the administrative proceedings
relating first to the suspension and later to the withdrawal of his
licence to practise medicine were unfairly conducted and not terminated
within a reasonable time (Article 6 (Art. 6) of the Convention).
1) However, the Commission notes that the applicant failed to
bring his complaint about the suspension of his licence to the Federal
Administrative Court as well as to the Federal Constitutional Court,
while the constitutional complaint which the applicant lodged against
the decisions given in the administrative proceedings relating to the
withdrawal of his licence was not admitted for a decision on the merits
because it was considered to be unsubstantiated.
It can in these circumstances not be found that the applicant has
exhausted domestic remedies and this part of the application must
therefore be rejected in accordance with Articles 26 and 27 para. 3
(Art. 26, 27-3) of the Convention.
2) So far as the length of the proceedings is concerned the
Commission notes that this matter was mentioned in the applicants
constitutional complaint relating to the proceedings on the withdrawal
of his licence to practise medicine. The Commission therefore accepts
that in this respect domestic remedies were exhausted.
However, the Commission notes that the proceedings here in
question lasted only from March 1989 until April 1991. This period
does not in the circumstances of the present case appear to be
excessive.
The Commission therefore concludes that the present complaint
does not disclose any appearance of a violation of the Convention and
must be rejected as being manifestly ill-founded in accordance with
Article 27 para. 2 (Art. 27-2) of the Convention.
II. Insofar as the applicant complains that in the civil proceedings
a default judgment was given against him although he had informed the
court that he was sick and had an appointment at a medical clinic the
Commission notes that according to the findings of the appellate court
the applicant had failed to give this information on time and also had
failed to show that it had been impossible for him to be represented
by another person.
The Commission cannot in these circumstances find that a fair
hearing by an impartial tribunal was denied to the applicant. There is
consequently no appearance of a violation of Article 6 (Art. 6) or of
other provisions of the Convention invoked by the applicant in this
context. It follows that this part of the application has to be
rejected in accordance with Article 27 para. 2 (Art. 27-2) of the
Convention as beeing manifestly ill-founded.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy