AS TO THE ADMISSIBILITY OF
Application No. 12715/87
by Pieter Edzo RAUWERDA
against the Netherlands
The European Commission of Human Rights sitting in private
on 6 March 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 31 December 1986
by Pieter Edzo RAUWERDA against the Netherlands and registered
on 5 February 1987 under file No. 12715/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Dutch citizen, born in 1913 and presently
residing in Groningen, the Netherlands. He is represented in the
proceedings before the Commission by Mr. L. van Heijningen, a lawyer
practising in The Hague.
The facts, as submitted by the applicant, may be summarised as
follows:
The applicant is a medical practitioner. Since 1979 he has
treated drug addicts.
On 10 January 1983 a complaint against the applicant was
lodged with the Medical Disciplinary Board (Medisch Tuchtcollege) of
Groningen. The complaint was deposited by both the Regional Medical
Inspector of Public Health (Geneeskundig Inspecteur van de
Volksgezondheid) and the Regional Public Health Inspector for
Medicines (Inspecteur van de Volksgezondheid voor de Geneesmiddelen).
It was alleged that the applicant had prescribed medicines in
contravention of standards of due care, had not consulted his
patients' general practitioners and had not ensured that these
patients received psychological help.
In its decision of 17 December 1984 the Medical Disciplinary
Board declared the complaint relating to the prescription of medicines
inadmissible and the complaint relating to the practice of medicine
ill-founded.
The Health Inspectors appealed to the Central Medical
Disciplinary Board (Centraal Medisch Tuchtcollege). In its decision
of 29 May 1986, pronounced publicly on 21 August 1986, the Central
Medical Disciplinary Board declared the complaint relating to the
prescription of medicines admissible but ill-founded. It considered
the other complaint partly well-founded, namely insofar as it related
to the fact that the applicant had not consulted the general
practitioners dealing with his patients and had not ensured that these
patients received psychological help. It held that, thereby,
the applicant had undermined public faith in the medical profession,
which is a disciplinary offence under the Medical Disciplinary Act
(Medische Tuchtwet). It reprimanded the applicant.
COMPLAINTS
The applicant complains that the Health Inspectors were
represented by a lawyer, which, in the present case, is in violation
of Dutch law; that under Dutch law the President of the Central
Medical Disciplinary Board must open a preliminary investigation,
which did not happen in the present case; that the complaint insofar
as it had been lodged by the Regional Public Health Inspector for
Medicines should have been declared inadmissible; that concerning this
complaint, the Central Medical Disciplinary Board considered that,
although the way in which the applicant had acted with regard to the
prescription of medicines could raise doubts as to his exercise of due
care, it could not be considered that, in concrete cases, he had
acted wrongly and in contravention of standards of due care, which
is, according to the applicant, inadmissible since this consideration
will discredit him; that in most cases he did consult the General
Practitioners dealing with his patients; that the consideration of the
Central Medical Disciplinary Board that the applicant should not deal
with patients who do not allow him to consult their General
Practitioners brings him into a moral conflict; that he himself gives
his patients a socio-psychiatric treatment that is not worse than that
given by official institutions; that the treatment of drug addicts by
the State is dealt with differently by the authorities than the
treatment given by the applicant, which was not taken into
consideration by the Central Medical Disciplinary Board; and that, in
violation of Dutch law, the Central Medical Disciplinary Board's
decision was not pronounced publicly within three weeks after the
hearing.
The applicant further complains that the complaints against
him were lodged on 10 January 1983 and that the decision of the
Central Medical Disciplinary Board was pronounced on 21 August 1986,
which exceeds a reasonable time; that the hearing was not public; and
that it should have been possible to appeal against the decision of
the Central Medical Disciplinary Board, as this decision was
discreditable and ill-founded.
The applicant invokes Article 6 of the Convention.
THE LAW
The applicant has complained of a decision of the Central
Medical Disciplinary Board, pronounced publicly on 21 August 1986 and
of the proceedings concerned. He has invoked Article 6 (Art. 6) of the
Convention.
Article 6 para. 1 (Art. 6-1) of the Convention provides, inter alia, as
follows:
"In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to
a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law".
The Commission notes that in the present case the Central
Medical Disciplinary Board merely reprimanded the applicant and had no
authority to impose a more severe measure. The Commission is,
therefore, of the opinion that the proceedings before the Central
Medical Disciplinary Board did not involve a determination of the
applicant's civil rights and obligations within the meaning of Article
6 para. 1 (Art. 6-1) of the Convention, even though the proceedings may have
indirect consequences as to his professional reputation.
On the question whether, in the present case, the Central
Medical Disciplinary Board has, in fact, determined a criminal charge
against the applicant the Commission refers to the criteria set out by
the European Court of Human Rights in its judgment of 8 June 1976 in
the case of Engel and others:
"a) whether the provision defining the disciplinary offence
charged belongs, according to the system of the respondent
State, to criminal law, disciplinary law or both
concurrently;
b) the very nature of the offence;
c) the degree of severity of the penalty that the person
concerned risks incurring" (Series A No. 22, p. 35,
para. 82).
The Commission notes that in the present case the applicant
was charged with having violated a provision of the Medical
Disciplinary Act. This Act does not exclude the liability of a
medical practitioner under penal law or civil law. The disciplinary
offence of which the applicant was convicted is limited and linked to
the exercise of the profession of medical practitioners. The measure
imposed was not a severe one and the applicant did not risk a more
severe measure than a reprimand before the Central Medical
Disciplinary Board. It follows that in view of the above criteria the
applicant was not the object of a criminal charge within the meaning
of Article 6 para. 1 (Art. 6-1) of the Convention.
The Commission is, therefore, of the opinion that Article 6 (Art. 6) of
the Convention does not apply in the present case. It follows that the
application is as a whole incompatible ratione materiae with the provisions of
the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)