AS TO THE ADMISSIBILITY
Application No. 11610/85
by Siv WESTERBERG
against Sweden
The European Commission of Human Rights sitting in private on
5 October 1987, the following members being present:
MM. C.A. NØRGAARD, President
M.A. TRIANTAFYLLIDES
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
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 26 April 1985
by Siv WESTERBERG against Sweden and registered on 24 June 1985 under
file No. 11610/85;
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 facts of the case, as they appear from the applicant's
submissions, may be summarised as follows.
The applicant is a Swedish citizen born in 1932 and resident
in Gothenburg. She is a practising lawyer.
After several years as a general medical practitioner, the
applicant's licence to practise (läkarlegitimation) was withdrawn by a
decision of 7 December 1979 by the Disciplinary Board of the Health
Organisation (medicinalväsendets ansvarsnämnd).
The applicant appealed to the Administrative Court of Appeal
(kammarrätten) of Stockholm which on 4 July 1980 rejected the appeal.
The applicant submitted a further appeal to the Supreme
Administrative Court (regeringsrätten) which rejected the appeal on
16 July 1981. In its judgment the Supreme Administrative Court stated
inter alia:
"From the comprehensive investigation of the case it clearly
appears ... that the medical practice run by (the applicant)
discloses very substantial deficiencies from a medical point
of view and that it is at such a level that it cannot be
accepted.
From the facts of the case it appears that (the applicant)
does not realise that her activities have been carried out in
an unsatisfactory manner. In view of the circumstances it
cannot be assumed that (the applicant) if she continued as
a medical practitioner would correct what is deficient.
The Supreme Administrative Court finds that (the applicant)
has shown herself to be manifestly unfit to exercise the
medical profession. Her licence to practise medicine should
therefore be revoked."
One of the justices of the Supreme Administrative
Court submitted a concurring opinion in which he developed
his opinion. He stated the following at the end of a two
page opinion:
"The circumstances which have been established through the
investigation have also been subject to the attention
of the social security office for a long time. In the
necessary co-operation with this office (the applicant) has
taken a more and more hostile attitude. There is no reason
to believe, in view of the applicant's attitude to the
problems at issue as it appears from her own writings, that
she would substiantially rectify herself after a reminder or
an admonition."
On 13 October 1983 the applicant submitted a request for a
licence to practise medicine. The request was refused by the Health
and Medical Disciplinary Board (hälso-och sjukvårdens ansvarsnämnd) on
12 April 1984, since it was considered that the conditions which had
prompted the withdrawal of the licence had not changed.
The applicant appealed to the Administrative Court of Appeal
of Stockholm, which rejected the appeal on 21 December 1984.
The applicant appealed to the Supreme Administrative Court
which, on 25 February 1985, refused to grant leave to appeal.
COMPLAINTS
1. The applicant complains that by withdrawing her licence to
practise medicine and by refusing to grant such licence the
authorities have violated her right to freedom of expression and
freedom to hold opinions since the withdrawal and the refusal were
based on expressions made by the applicant and on the opinions which
she holds. The withdrawal of the licence and the refusal to renew it
are a sanction for expressions made by the applicant, inter alia, in
the Medical Practitioners' Journal (Läkartidningen) in 1975, where she
criticised the social security office. The applicant also refers to
the concurring opinion of one of the justices of the Supreme
Administrative Court to substantiate that the measures against her
were based on her opinions. She alleges a breach of Article 10 of the
Convention.
2. The applicant also alleges a violation of Article 6 of the
Convention. She submits that the Courts without proof have accepted
unsubstiantiated allegations from her counter party. Consequently,
the Courts have not been impartial.
THE LAW
1. The applicant complains that the withdrawal of her licence to
practise medicine and the subsequent refusal to grant her such a
licence were a sanction for her having expressed opinions. She alleges a
breach of Article 10 (Art. 10) of the Convention, which guarantees the right to
freedom of expression, a right which includes the freedom to hold opinions.
The applicant also complains that the treatment which her case
received by the Courts was not impartial and that there has
accordingly been a breach of Article 6 (Art. 6) of the Convention.
2. The Commission recalls that the applicant's licence was
withdrawn by a decision of 7 December 1979, a decision which was
eventually confirmed by the judgment of the Supreme Administrative
Court dated 16 July 1981. Later the applicant sought to obtain a new
licence to practise medicine. Her request was refused, the final
decision being the decision of the Supreme Administrative Court of
25 February 1985.
Under Article 26 (Art. 26) of the Convention the Commission may only
deal with an application which has been introduced within six months
from the final domestic decision. The present application was
introduced on 26 April 1985 which is more than six months after
16 July 1981, being the date of the judgment of the Supreme
Administrative Court whereby the withdrawal of the applicant's licence
became final. The applicant's complaints relating to this judgment
and the procedure which preceded that judgment have accordingly been
lodged out of time with the Commission, and must therefore be rejected
pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.
3. As regards the refusal to grant the applicant a licence to
practise medicine, it is recalled that this refusal was based on the
consideration that the conditions which had prompted the withdrawal of
the licence had not changed. Accordingly, when examining this refusal
under Article 10 (Art. 10) of the Convention the Commission must take into
account the grounds given for the withdrawal of the applicant's
licence. Having examined the grounds indicated in the judgment of the
Supreme Administrative Court of 16 July 1981, as well as the
concurring opinion, the Commission finds no reason to conclude that
the refusal to grant the licence to practise medicine was based on,
or motivated by, the applicant's criticism against the authorities.
There is therefore no interference with the applicant's right to
freedom of expression as guaranteed by Article 10 para. 1 (Art. 10-1) of the
Convention.
It follows that, in this respect, the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. With regard to the complaint under Article 6 (Art. 6) of the Convention
the Commission, assuming that Article 6 is applicable to the proceedings in
question, recalls that, in accordance with Article 19 (Art. 19) of the
Convention, its only task is to ensure the observance of the obligations
undertaken by the Parties in the Convention. In particular, it is not
competent to deal with an application alleging that errors of law or fact have
been committed by domestic courts, except where it considers that such errors
might have involved a possible violation of any of the rights and freedoms set
out in the Convention. The Commission refers, on this point, to its constant
case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No.
5258/71, Dec. 8.2.73, Collection 43 pp. 71,77; No. 7987/77, Dec. 13.12.79, D.R.
18 pp. 31, 45). The Commission is thus not competent to examine whether or not
the domestic courts have correctly evaluated the evidence before them.
The Commission finds that the applicant's submissions do not
disclose any appearance of a violation of Article 6 (Art. 6) of the Convention
in the proceedings complained of.
It follows that the remainder 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
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)