AS TO THE ADMISSIBILITY OF
Application No. 25993/94
by Klaus-Jürgen SCHREPFFER
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 18 October 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 28 July 1994 by
Klaus-Jürgen SCHREPFFER against Germany and registered on
19 December 1994 under file No. 25993/94;
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 facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
The applicant, born in 1943, is a German national and resident
in Bühl. He is a dentist by profession. Before the Commission he is
represented by Mr. G.-A. Hahn and partners, lawyers practising in
Hamburg.
A. Particular circumstances of the case
On 22 January 1992 the Mannheim District Disciplinary Court for
Dentists (Bezirksberufsgericht für Zahnärzte) found the applicant
guilty of professional misconduct (berufsunwürdige Handlung) and
imposed a fine of DM 12,000.
The District Disciplinary Court, having heard various witnesses,
found that the applicant had, contrary to the relevant provisions of
the Baden-Württemberg Act on the Professional Bodies, the Professional
Duties, the Training and Disciplinary Courts for Medical Practitioners,
Veterinary Surgeons, Pharmacists and Dental Technicians ("Chamber Act"
Gesetz über die öffentliche Berufsvertretung, die Berufspflichten, die
Weiterbildung und die Berufsgerichtsbarkeit der Ärzte, Zahnärzte,
Tierärzte, Apotheker und Dentisten - Kammergesetz) and the professional
rules for dentists (Berufsordnung der Landeszahnärztekammer Baden-
Württemberg), delegated a range of his tasks in orthodontic treatment
to his assistants and moreover had failed to control them in their
activities. Furthermore, due to the delegation and failure of control,
he had failed to diagnose and treat the caries of one of his patients.
In fixing the sentence, the Court considered that the continued
delegation of tasks contrary to the professional rules was of a very
serious nature and that he had a very high income.
In these and the subsequent proceedings the applicant was
represented by counsel.
On 20 November 1993 the Stuttgart Regional Disciplinary Court for
Dentists (Landesberufsgericht für Zahnärzte) dismissed the applicant's
appeal (Berufung). The Regional Disciplinary Court, having again taken
evidence, found in particular that the applicant had delegated a range
of tasks to his assistants which, according to the relevant provisions
of the Chamber Act and the professional rules for dentists, formed part
of the professional activities reserved to dentists, and had
furthermore failed to control the work of his assistants. The
applicant had thereby breached his duties as laid down in the legal
provisions concerning his profession, the question of the potential
risk of such a delegation for the patients concerned being irrelevant
in this context.
On 11 March 1994 the Federal Constitutional Court
(Bundesverfassungsgericht) refused to admit the applicant's
constitutional complaint (Verfassungsbeschwerde).
B. Relevant domestic law
The professional conduct of dentists in Baden-Württemberg is
regulated in the Baden-Württemberg Act on the Professional Bodies, the
Professional Duties, the Training and Disciplinary Courts for Medical
Practitioners, Veterinary Surgeons, Pharmacists and Dental Technicians
("Chamber Act" Gesetz über die öffentliche Berufsvertretung, die
Berufspflichten, die Weiterbildung und die Berufsgerichtsbarkeit der
Ärzte, Zahnärzte, Tierärzte, Apotheker und Dentisten - Kammergesetz)
and the professional rules for dentists, issued by the Baden-Württem-
berg Chamber for Dentists (Berufsordnung der Landeszahnärztekammer
Baden-Württemberg).
According to S. 54 para. 2 of the above Chamber Act, dentists
commit professional misconduct (berufsunwürdige Handlung), if they
violate their professional duties as a member of the Chamber concerned,
which they are bound to fulfil in order to maintain the reputation of
the medical profession.
S. 1 of the Baden-Württemberg professional rules for dentists
provides that, as a rule, a dentist has to exercise his profession as
dentist personally. S. 22 further specifies the limits of a possible
delegation of tasks to assistants in accordance with their professional
training.
According to S. 57 of the Chamber Act, disciplinary sanctions are
a warning, a reprimand, a fine of maximum DM 20,000, the deprivation
of their membership in the organs of the Chamber or its subordinate
organisations or the deprivation of the right to vote or to stand for
election in the said organs for a maximum of five years.
COMPLAINTS
The applicant complains under Article 6 of the Convention about
about the alleged unfairness of the proceedings before the Regional
Disciplinary Court. He submits that the Regional Disciplinary Court,
in its decision of 20 November 1992, failed to consider essential
elements of his submissions in defence according to which his practice
of delegation was confirmed in publications of some legal experts.
THE LAW
The applicant complains under Article 6 (Art. 6) of the
Convention about the disciplinary proceedings against him before the
Stuttgart Disciplinary Court of Appeal for Dentists.
Article 6 (Art. 6), so far as relevant, provides as follows:
"1. In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a
fair ... hearing ... by an independent and impartial tribunal
..."
As regards the applicability of Article 6 (Art. 6), the
Commission recalls that disciplinary proceedings concerning the
disciplinary penalty of a suspension from practice as a medical
practitioner were regarded as a dispute relating to "civil rights and
obligations" (Eur. Court H.R., Le Compte, Van Leuven and De Meyere
judgment of 23 June 1983, Series A no. 43, pp. 20-22, paras. 45-50;
Albert and Le Compte judgment of 10 February 1983, Series A no. 58,
p. 15, para. 28; Houart v. Belgium, Comm. Report 8.7.86, D.R. 53,
p. 5). The existence of a "criminal charge" depends upon the
classification of the offence in issue according to the legal system
of the respondent State, the nature of the offence and the nature and
degree of severity of the penalty incurred (cf. Eur. Court H.R., Weber
judgment of 22 May 1990, Series A no. 177, pp. 17-18, paras. 30-35).
The present case relates to disciplinary proceedings which were
conducted against the applicant for professional misconduct, pursuant
to the Baden-Württemberg Chamber Act and the professional rules for
dentists. A fine of DM 12,000 was imposed. The question arises
whether these proceedings involved a determination of the applicant's
civil rights and obligations or of any criminal charge against him
within the meaning of Article 6 para. 1 (Art. 6-1). However, this
matter can be left open on the ground that the application is
inadmissible for the following reasons.
The applicant considers that the appeal proceedings were unfair
in that the Regional Disciplinary Court, in its decision dismissing his
appeal, allegedly did not duly consider his arguments.
Article 6 para. 1 (Art. 6-1) obliges the courts to give reasons
for their judgments, but cannot be understood a detailed answer to
every argument (Eur. Court H.R., Ruiz Torija and Hiro Balani judgments
of 9 December 1994, para. 29/27, Series A nos. 303 A/B, respectively).
Moreover, the Convention organs are not called upon to examine whether
arguments are adequately met (see Eur. Court H.R., Van de Hurk judgment
of 19 April 1994, Series A no. 288, p. 20, para. 61).
In the present case, the applicant argued in defence that his
practice of delegating tasks to his assistants could not be regarded
as professional misconduct. The Stuttgart Regional Disciplinary Court,
in its decision, examined the applicant's practice of delegation and
found that he had delegated tasks reserved to dentists in breach of the
relevant legal provisions on professional duties.
In these circumstances, there is no indication that the Regional
Disciplinary Court failed to fulfil its obligations to consider the
applicant's appeal submissions and to state reasons in its decision.
The Commission considers that the applicant's submissions do not
disclose any appearance of a violation of the right to a fair hearing,
as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2).
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