THIRD SECTION
DRAFT DECISION
AS TO THE ADMISSIBILITY OF
Application no. 37928/97
by Miro STAMBUK
against Germany
The European Court of Human Rights (Third Section), sitting on 22 November 2001 as a Chamber composed of
MrI. Cabral Barreto, President,
MrG. RESS,
MrL. Caflisch,
MrR. Türmen,
MrsH.S. Greve,
MrK. Traja, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 30 August 1997 and registered on 26 September 1997,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,]
Having deliberated, decides as follows:
THE FACTS
A. Particular circumstances of the case
The applicant, Mr Miro Stambuk, is a German national, born in 1943 and living in Blaubeuren. He is represented before the Court by Mr Kleine‑Kosak, a lawyer practising in Freiburg.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 25 October 1995 the Tübingen District Disciplinary Court for Medical Practitioners (Bezirksberufsgericht für Ärzte) imposed a fine amounting to 2,000 German marks (DEM) upon the applicant, an ophthalmologist, for disregarding the ban on advertising under the relevant provisions of the Baden-Württemberg Rules of Professional Conduct of the Medical Practitioners’ Council (Berufsordnung der Landesärztekammer) and the Act on the Councils for the Medical Professions (Heilberufe‑Kammergesetz).
In its reasoning, the Disciplinary Court found that the applicant performed medical operations with a laser technique. In the house where he had his consultation rooms, his wife ran an “excimer-laser-centre”. In May 1994 the journalist Ms K. of the newspaper Schwäbische Zeitung had visited the applicant, upon appointment, in his consultation rooms and discussed his new laser operation technique. Moreover, a photograph was taken of the applicant at his place of work. On 26 September 1994, there had appeared in the said newspaper an article signed by Ms K. and entitled “Cornea under fire - laser restores full vision. In Blaubeuren, the “photorefractive keratotomy” has been applied since three years - operation risks are low - expenses are partly reimbursed by the insurances” (“Die Hornhaut unter Beschuss - Laser gibt dem Auge die volle Sehkraft zurück. In Blaubeuren wird seit drei Jahren die “Photorefraktive Keratektomie” angewandt” - Operationsrisiken sind gering - Kosten werden teilweise von den Kassen übernommen.”). In the article, it had been inter alia stated that, according to his indications, the applicant had treated more than 400 patients having a defective vision with a laser technique and that in no case any subsequent corrective measures had been necessary and that accordingly he had a success rate of 100%. The article had also reported the applicant’s statement that the long-term success of an operation depended upon the experience of the medical practitioner and on the selection of the patients. The article had been illustrated by a photograph of 12x19 cm in size which showed the applicant at his computer pointing to the monitor. It had the caption: “On the occasion of the ‘mapping’ Dr Miro Stambuk sees on the monitor of his computer whether or not the patient can be treated with the laser technique” (“Beim ‘mapping’ sieht Dr. Miro Stambuk auf dem Monitor seines Computers, ob ein Patient mit dem Laser behandelt werden kann.”).
The Disciplinary Court considered that the applicant had thereby disregarded sections 25(2) and 27 of the Rules of Professional Conduct of the Medical Practitioners’ Council. Thus, according to section 25(2), a medical practitioner should not allow for picture-stories to be published in respect of his professional activities which had an advertising character, indicated the name and showed a photograph. According to section 27, the cooperation of a medical practitioner in informative publications in the press was only permissible if these publications were limited to objective information and if the person and the activities of the practitioner were not presented in the form of an advertisement. In press interviews, the medical practitioner was held to “responsible objectivity” (“verantwortungsbewusste Objektivität”).
According to the Court, the applicant had disregarded these rules in that he had, in the interview, stressed having treated more than 400 patients and had had a success rate of 100%. He had thereby mainly aimed at giving prominence to his own person. This was confirmed by his remark about his professional experience. Likewise, the large photograph, showing the applicant in his medical coat posing as lecturer in front of his computer, went beyond the permissible limits of objective information, as, together with the self-praise found in the text, the message was conveyed that the applicant was a particularly experienced medical practitioner. The applicant should have negotiated with the reporter the objective character of the publication and the size of the photograph in order to comply with the ban on advertising.
On 15 June 1996 the Stuttgart Disciplinary Appeals Court for Medical Practitioners (Landesberufsgericht) dismissed the applicant’s appeal. The Appeals Court confirmed the facts established by the District Court and its legal reasoning.
The Appeals Court considered in particular that in order to give effect to the ban on advertisement as laid down in section 25(1) of the Rules of Professional Conduct, cooperation with the press had to be prohibited to the extent that publications had an advertising character (section 25(2)). No less restrictive measure was available. The wording of a publication could disguise its advertising character and thus be a means to circumvent the ban on prohibition.
Having regard to the circumstances of the interview and the presentation of the article, the Appeals Court further considered that the applicant had not only tolerated that an article was published which would go beyond objective information on a particular operation technique, but had deliberately acted so as to give prominence to his own person. The Appeals Court also stated that, having regard to the interests of his colleagues, the ban on advertising outweighed the applicant’s freedom to exercise his profession .
On 7 May 1997 the Federal Constitutional Court refused to admit his constitutional complaint. The decision was served on 22 May 1997.
B. Relevant domestic law
In the Federal Republic of Germany, the medical profession is governed partly by Federal law and partly by the law of the Länder. The principal rules relevant for the present case are to be found in the Federal Medical Practitioners’ Act (Bundesärzteordnung) in the version of 16 April 1987 (amended in 1988, 1990, 1992 and 1993), the Baden-Württemberg Act on the Councils for the Medical Professions (Gesetz über die öffentliche Berufsvertretung, die Berufspflichten, die Weiterbildung und die Berufsgerichtsbarkeit der Ärzte, Zahnärzte, Tierärzte, Apotheker und Dentisten - Heilberufe-Kammergesetz) of 16 March 1995 (amended in 1999 and 2000), and the Baden-Württemberg Rules of Professional Conduct of the Medical Practitioners’ Council in the version of 23 February 1994, as amended in September 1996 (in force at the material time - latest version of 14 January 1998).
According to section 1 of the Federal Medical Practitioners’ Act, the medical practitioner shall have the care of the health of each individual and of the community as a whole; he exercises a liberal profession and not a trade or business.
The medical practitioners practising in Baden-Württemberg constitute the Baden-Württemberg Medical Practitioners’ Council, which is a public-law association (sections 1, 2 and 7 of the Baden-Württemberg Act on the Councils for the Medical Professions). The functions of the Medical Practitioners’ Council include defending the interests of its members and ensuring that they meet their professional obligations (section 4 of the said Act). The Council adopts decrees concerning inter alia the Rules of Professional Conduct (section 9 of the said Act).
As regards professional communications, the Baden-Württemberg Rules of Professional Conduct of the Medical Practitioners’ Council, as in force at the material time, provided as follows:
Section 25
“(1) A medical practitioner is not allowed to advertise his own services or those of other medical practitioners. He shall not instigate or tolerate such prohibited advertising by others. ...
(2) A medical practitioner shall not tolerate the publication of reports or picture-stories on his professional activity with an advertising character, stating his name, showing his photograph or indicating his address.”
Section 27
“Medical publications or the cooperation in informative publications in press, broadcasting or television are permissible if and to the extent that these publications or the medical practitioner’s cooperation are limited to objective information and neithr the medical practitioner himself nor his activities are presented in the form of an advertisement. In such instances, the medical practitioner is held to ‘responsible objectivity’. The same shall apply to public lectures on medical issues.”
Sections 55 to 69 of the Baden-Württemberg Act on the Councils for the Medical Professions govern the disciplinary powers of the Councils. According to Section 55(1) and (2), members of these Councils face disciplinary action for professional misconduct (berufsunwürdige Handlungen), i.e. conduct offending their professional duties as members of the Chamber concerned. Pursuant to section 58, the following disciplinary penalties may be imposed in disciplinary court proceedings: warning, reprimand, a fine of up to DEM 100,000, a loss of membership of the Council organs and of other representative bodies or committees of subordinate entities for a period not exceeding five years, loss of the right to vote and to stand for elections to such organs for a period not exceeding five years. Disciplinary proceedings are, at first instance, conducted before the district disciplinary courts (section 60); an appeal lies against the decision of the district disciplinary court and must be lodged with the disciplinary appeals court (section 61).
COMPLAINTS
The applicant complains under Article 10 of the Convention that his disciplinary punishment by the Tübingen District Disciplinary Court for Medical Practitioners, as confirmed by the Stuttgart Disciplinary Appeals Court for Medical Practitioners, amounts to a violation of his freedom of expression.
He submits that if generally the ban on advertising serves the purpose of the protection of health, it could not be accepted under Article 10 § 2 that the interference is justified on account of the interests of other medical practitioners. Furthermore, he maintains that the obligations on medical practitioners to cooperate in publications by third persons in the press went beyond what was necessary to protect public health.
THE LAW
The applicant complains that the disciplinary punishment imposed on him for having participated in a press article on his work violated his right to freedom of expression guaranteed in Article 10 of the Convention, which provides:
“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 and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
The Government submit that the disciplinary punishment imposed on the applicant amounts to an interference with his right to freedom of expression under Article 10 § 1, which is justified under paragraph 2 of Article 10.
They consider that the interference was prescribed by law, namely sections 25 and 27 of the Baden-Württemberg Rules of Professional Conduct of the Medical Practitioners’ Council and sections 55 and 58 of the Baden-Württemberg Act on the Councils for the Medical Professions.
The Government further state that the disciplinary measure imposed upon the applicant served to protect the health of the public and the rights of others. In their view, a medical practitioner is primarily responsible for the care of the health of individuals. His activity therefore cannot be reconciled with advertising which is the typical instrument for profit-making. Commercialisation of the medical profession must be avoided for the protection of patients and their health. The decisions in the instant case were based on these general considerations of medical policy. Protecting the interests of competitors was only a supplementary element in the Appeals Court decision.
As regards the necessity of the interference, the Government maintain that the disciplinary courts, having examined the particular circumstances of the applicant’s case, correctly concluded that he had disregarded the ban on advertising. The applicant was not barred from making public statements on the issue of photorefractive keratotomy. The disciplinary punishment had not been imposed with regard to the article as a whole, but in respect of specifice elements of an excessively advertising character. By giving himself prominence in the article, the applicant overstepped the limits of permissible objective information. The photograph, especially of that size, did not convey to the reader any additional factual information. It was rather meant to serve as an eye-catcher, showing the applicant in his medical coat and thereby suggesting that the treatment described in the article was advisable for the reader. Furthermore, stating a success rate was no objective information, as the success of medical treatment depends upon individual diagnosis and cooperation with the patient concerned. At the relevant time, the method of photorefractive keratotomy was not yet generally recognised.
In their submission, the ban on advertising can only operate effectively, if the medical practitioner is also prohibited from permitting publications, by other persons, advertising his services. In the circumstances of the present case, the applicant could reasonably be expected to reserve the right to verify the text and presentation of the publication at issue.
Finally, the Government consider that, having regard to the rather low amount of the fine imposed upon the applicant, the penalty could not be regarded as disproportionate.
The applicant objects to the Government’s views. He considers that the relevant provisions of the Rules of Professional Conduct have to be interpreted restrictively. He accepts that a ban on advertising pursues the legitimate aim of protecting health. However, such prohibitions were not permissible if they merely served the purpose of protecting competitors. Medical practitioners should not be prohibited from advertising in an informative manner on matters which are relevant for patients and contribute to the transparency of medical services. The advertising effect was secondary. In case of new methods of medical treatment, informing the public was particularly important. The indication as to the success rate had not been misleading and cannot be criticised. In particular, he could not be reproached for the publication of a photograph showing him wearing his medical coat. The applicant further questions the necessity of disciplinary punishment for having cooperated in, or tolerated, a publication by the press. A medical practitioner had no opportunity to influence the contents of press articles and he could not be expected to reserve a right to verify publications.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
Vincent Berger Ireneu Cabral Barreto
RegistrarPresident
Full & Egal Universal Law Academy