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You are here: BAILII >> Databases >> European Court of Human Rights >> DEBLED v. BELGIUM - 13839/88 [1994] ECHR 28 (22 September 1994) URL: http://www.bailii.org/eu/cases/ECHR/1994/28.html Cite as: [1994] ECHR 28, 19 EHRR 506, (1995) 19 EHRR 506

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In the case of Debled v. Belgium*,

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of the Rules of Court, as a Chamber composed of the

following judges:

Mr R. Ryssdal, President,

Mr R. Bernhardt,

Mr Thór Vilhjálmsson,

Mr F. Matscher,

Mr C. Russo,

Mr J. De Meyer,

Mr N. Valticos,

Mrs E. Palm,

Sir John Freeland,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 23 February and

23 August 1994,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

* Note by the Registrar. The case is numbered 17/1993/412/491. The

first number is the case's position on the list of cases referred to

the Court in the relevant year (second number). The last two numbers

indicate the case's position on the list of cases referred to the Court

since its creation and on the list of the corresponding originating

applications to the Commission.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 13 April 1993, within the

three-month period laid down by Article 32 para. 1 and Article 47

(art. 32-1, art. 47) of the Convention. It originated in an

application (no. 13839/88) against the Kingdom of Belgium lodged with

the Commission under Article 25 (art. 25) by a Belgian national,

Dr Georges Debled, on 17 November 1988.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Belgium recognised

the compulsory jurisdiction of the Court (Article 46) (art. 46). The

object of the request was to obtain a decision as to whether the facts

of the case disclosed a breach by the respondent State of its

obligations under Article 6 (art. 6) of the Convention.

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that

he wished to take part in the proceedings and designated the lawyer who

would represent him (Rule 30).

3. The Chamber to be constituted included ex officio

Mr J. De Meyer, the elected judge of Belgian nationality (Article 43

of the Convention) (art. 43), and Mr R. Ryssdal, the President of the

Court (Rule 21 para. 3 (b)). On 23 April 1993, in the presence of the

Registrar, the President drew by lot the names of the other seven

members, namely Mr R. Bernhardt, Mr Thór Vilhjálmsson, Mr F. Matscher,

Mr C. Russo, Mr N. Valticos, Mr F. Bigi and Sir John Freeland

(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).

Mrs E. Palm, substitute judge, subsequently replaced Mr Bigi, who was

unable to take part in the further consideration of the case (Rules 22

para. 1 and 24 para. 1).

4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,

acting through the Registrar, consulted the Agent of the Belgian

Government ("the Government"), the applicant's lawyer and the Delegate

of the Commission on the organisation of the proceedings

(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,

the Registrar received the applicant's memorial on 15 November 1993 and

the Government's memorial on 16 November. On 24 November the Secretary

to the Commission informed the Registrar that the Delegate would submit

his observations at the hearing.

5. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

21 February 1994. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr J. Lathouwers, Deputy Adviser,

Head of the Human Rights Department, Delegate

Ministry of Justice, of the Agent,

Mr J.-M. Nelissen-Grade, avocat at the

Court of Cassation, Counsel;

(b) for the Commission

Mr S. Trechsel, Delegate;

(c) for the applicant

Mr M. Spandre, avocat,

Mr M. Graindorge, avocat, Counsel.

The Court heard addresses by Mr Nelissen-Grade, Mr Trechsel,

Mr Spandre and Mr Graindorge.

AS TO THE FACTS

I. The circumstances of the case

A. Proceedings before the Brabant Provincial Council of the Ordre

des médecins

6. Dr Georges Debled, a urologist of Belgian nationality, lives

and practises in Paris.

7. On 10 September 1982, 5 November 1982, 17 March 1983 and

13 August 1984, at a time when the applicant was still practising in

Belgium, patients of his complained to the Brabant Ordre des médecins

(medical association) that the fees he charged were excessive. After

considering these complaints, the Provincial Council summoned the

applicant to appear before it on 5 March 1985. The council's

registered letter of 11 February 1985 also informed him that he would

be heard on the following counts:

"1° that on numerous occasions in recent years, despite the

council's warnings, recommendations and cautions, he charged

his patients excessive fees, and persisted in doing so, in

breach of the principles of moderation and discretion

incumbent on medical practitioners ...

2° that, after various complaints from patients regarding

excessive fees, he refused to follow the recommendation of the

council's fees disputes committee that the cases be submitted

to it;

3° that, through his attitude, he showed total contempt for

the council's warnings, demonstrating by his statements that

he was guided in his practice of medicine by concerns of a

wholly pecuniary nature;

4° that without valid reason he failed to take part in the

[council's] elections of March 1982."

8. At the request of the applicant's lawyer, the hearing was

postponed to 2 April 1985.

9. In pleadings filed on the day of the hearing, Dr Debled,

referring inter alia to certain provisions of the Judicial Code and of

the Royal Decree of 29 May 1970, challenged, by way of main submission,

"the council as a whole" and, in the alternative, five doctors sitting

on the council, on the ground that, even before the hearing, they had

"individually expressed their opinion concerning Dr Debled's conduct

and had described it in negative terms". He also reserved the right

to contest both the admissibility of the case brought against him and

its merits. In additional submissions made at the hearing he requested

that "the proceedings be stayed ... until the appeal [he] intend[ed]

to lodge against the council's decision had been heard". Finally, he

refused to present argument on the merits, despite having been invited

to do so by the council, and withdrew from the hearing.

10. The council gave its decision on 2 April 1985. It first held

that the legislative provisions relied on by the applicant had no

bearing on the facts of the case and therefore could not constitute the

basis for his application challenging its members. It then noted that

none of the members of the Ordre whom he had accused of having a

"negative attitude towards him" sat on the council to which it fell to

determine the disciplinary proceedings. Lastly, it pointed out that

four of the council members whom the applicant had challenged had not

heard the case in question and that the fifth had only been present in

an advisory capacity and had not taken part in the deliberations. It

accordingly dismissed the application challenging the council en bloc

and ruled that the application concerning the five medical

practitioners was inadmissible and ill-founded.

The council gave its decision on the request for a stay of the

proceedings in the following terms:

"... quite apart from the inappropriate references to

legislation which has no bearing on the case..., [the

additional] submissions state in a curiously implausible and

contradictory manner that 'by refusing to give a decision on

the challenges, the council dismissed them';

... at no time did the council refuse to give a decision on

the challenges; ... it merely informed Dr Debled and his

lawyers that it would rule on the challenges and the merits in

a single decision; ... during the hearing it did not take any

decision whatsoever on the challenges and ... Dr Debled was

consequently acting precipitately and in a way which prejudged

a decision that had not been taken when he stated that he

intended to appeal against that decision and requested that

the proceedings be stayed pending the outcome of that

hypothetical appeal.

... there is no reason to grant that request."

With regard to the merits of the case, the council, giving its

decision in absentia, considered that most of the charges against

Dr Debled had been substantiated and imposed "on [him] the penalty of

one year's suspension of his right to practise medicine".

B. Proceedings before the Appeals Board of the Ordre des médecins

1. The appeal

11. On 11 April 1985 Dr Debled lodged an appeal against the

decision of 2 April 1985 with the French-language Appeals Board of the

Ordre des médecins.

12. On 2 October 1986 he was summoned to a hearing to be held on

20 October. On that date he requested a three-month adjournment to

enable his new lawyers to prepare his defence. After deliberating, the

Appeals Board apparently allowed him an adjournment until

4 November 1986.

On 21 October 1986 he laid a complaint for falsification and

use of falsified documents against the members of the bureau of the

council of the Ordre des médecins (Dr Remion, Dr Govaerts, Dr Roose,

Dr Farber and Dr Brihaye). He disputed certain entries in the minutes

of meetings held on 14 June 1983 and 9 October 1984 to consider the

complaints against him. He subsequently also lodged the following

complaints:

- on 31 October 1986 against Mrs Beaupain and Mrs Couturier,

the judges (magistrats) who had sat on the bureau and council

of the Ordre during those meetings;

- on 14 November 1986 against Dr Farber, the vice-president of

the Ordre des médecins, concerning statements made to the

press on 5 November 1986;

- on 25 November 1986 against the same person for making

misleading statements and for breach of confidentiality.

No information has been provided as to what action was taken

in response to those complaints.

2. The application for a transfer of jurisdiction on the

ground of bias

13. In the meantime, on 3 November 1986 Dr Debled applied to the

Court of Cassation for a transfer of jurisdiction, claiming that there

were reasonable grounds for suspecting the Appeals Board of bias

(suspicion légitime). He called into question the impartiality of two

of the five full members, Dr Raickman and Dr Vossen, and three of the

five substitute members, Dr Beernaerts, Dr Daxhelet and Dr Gelin, who

were or had been officials of the medical unions.

He first alleged "in general terms" that the medical unions had

gradually taken control of the various institutions of the Ordre des

médecins with the result that the policy pursued by the association in

fact simply reflected the unions' policies, which were designed purely

to safeguard the interests of union members. Consequently, those who

opposed this policy through the way in which they practised and the

opinions they expressed had good reason to fear that, when hearing a

case that concerned them, the union members would not show the

impartiality to which everyone was entitled. He maintained, in

addition, that the members of the Appeals Board bore a grudge against

him personally because of the views he had expressed. In 1981 he had

denounced the collusion between the Ordre des médecins and the unions

and he had joined the "call of the 300" medical practitioners angered

by the Ordre's backing of a health care strike organised by the unions.

Lastly, he pointed out that the capacity of the disciplinary bodies of

the Ordre des médecins to conduct proceedings in an objective and

impartial manner had been questioned on many occasions by the press,

among others, especially in so far as it was possible to be a member

of those bodies and a member of the unions' organs at the same time.

14. In a judgment of 21 May 1987 the Court of Cassation ruled

inadmissible the application for a transfer of jurisdiction. It held

that Article 12 para. 1 of the Royal Decree of 10 November 1967 on the

Ordre des médecins (see paragraph 22 below) had set up only one

French-language Appeals Board and that therefore, as a matter of law,

it would be impossible to transfer jurisdiction to another

French-speaking Appeals Board. Removing the case from the board

without remitting it to another tribunal would, moreover, be tantamount

to a denial of justice.

3. The Appeals Board's decision of 29 September 1987

15. On 29 September 1987 the Appeals Board gave its decision in

absentia since Dr Debled had not made any further appearances before

it after the hearing of 20 October 1986 (see paragraph 12 above). It

annulled the decision of 2 April 1985, on the ground that six doctors

who had conducted the preliminary investigation had taken part in the

deliberations, and suspended Dr Debled's right to practise medicine for

three months. At the same time it dismissed the applications

challenging the council members and requesting a deferral of the

proceedings, finding that "in his appeal Dr Debled [had] failed to

establish that [his] applications were well-founded as to either the

law or the facts".

4. The application calling upon the Appeals Board to set

aside its decision

16. On 20 October 1987 Dr Debled asked the Appeals Board to set

aside its decision of 29 September 1987 pursuant to Article 34 of the

Royal Decree of 6 February 1970 (see paragraph 25 below). He alleged,

inter alia, that Royal Decree no. 79 on the Ordre des médecins (see

paragraph 22 below) and Royal Decree no. 78 on the medical profession,

the practice of related professions and the medical committees were

manifestly unlawful because certain essential procedural requirements

had not been complied with prior to their adoption. In his submissions

he requested the Appeals Board to rule as follows:

"Primarily

Declare that the Appeals Board does not legally exist or, at

least, that it is unlawfully constituted, and that the same

applies to the Brabant Provincial Council of the Ordre des

médecins, and accordingly hold that the measure ordered by the

Provincial Council against the applicant was unlawful;

discontinue the proceedings brought against the applicant or,

at least, stay the proceedings until another joint,

French-language Appeals Board has been formed in accordance

with the Act of 25 July 1938 and more particularly section 11

of that Act.

In the alternative

Stay its proceedings on account of the various complaints

laid by the applicant, together with applications to join the

proceedings as a civil party filed by him, until the relevant

criminal proceedings are concluded, in accordance with the

principle that criminal proceedings take precedence over civil

proceedings.

In the further alternative

Find that the Appeals Board, which annulled the decision

appealed against, could under no circumstances rely on any of

the documents produced before the Provincial Council because

those documents were inadmissible.

In the even further alternative

... dismiss all the charges and complaints brought against

the applicant."

5. The Appeals Board's decision of 15 March 1988

17. On 12 November 1987 Dr Debled was summoned to appear before the

Appeals Board on 19 January 1988. At the hearing he immediately

challenged Dr Cattiez, Dr Andri and Dr Raickman. He alleged that they

were influential members of the medical unions, which he had

consistently opposed - in particular by denouncing the collusion

between the Ordre and the unions and by taking part in the "call of

the 300". He likewise challenged Judge Thiry on the ground that his

son was one of the medical unions' lawyers. After hearing Dr Debled,

the Appeals Board withdrew to deliberate. It then decided to adjourn

the proceedings until 2 February 1988 in order to enable it to

"reconstitute a full board" in the meantime.

18. At the hearing on 2 February 1988 Dr Debled filed a further

application challenging Mr Thiry. In addition, he challenged

Dr Fagnart and Dr Lange, in the latter's case on the ground that his

son was a member of the medical union of the provinces of Liège and

Luxembourg. He declared, furthermore, that he intended to persist with

the applications he had filed at the hearing on 19 January. After

hearing Dr Debled, the Appeals Board decided to join the interlocutory

proceedings to the merits, whereupon the applicant asked that the

record should state that he reserved his position concerning both the

failure to take an immediate decision on the challenges and their

joinder to the merits.

19. On 15 March 1988, at a public hearing, the Appeals Board

dismissed the objection based on the alleged unlawfulness of Royal

Decrees nos. 78 and 79 and ruled that the application of

20 October 1987 requesting it to set aside its earlier decision was

ill-founded (see paragraph 16 above). It noted that the Provincial

Council's decision of 2 April 1985 (see paragraph 10 above) had been

annulled and confirmed the decision of 29 September 1987 (see

paragraph 15 above) suspending Dr Debled's right to practise medicine

for three months. On the subject of the challenges, it ruled as

follows:

"... the president informed each of the challenged members

of the existence of a challenge and submitted their individual

cases to the board, which in each case took a majority vote on

the challenge without the member concerned being present, but

after hearing that member;

... with regard to the challenges against Dr Fagnart and

Dr Lange, the board notes that the applications are neither

dated nor signed; they are thus flawed and hence inadmissible;

... with regard to the challenges against Dr Cattiez,

Dr Andri and Dr Raickman and the challenges concerning Judge

Thiry, the board notes that they are all based on

Article 828, 11°, of the Judicial Code and that the documents

produced by Dr Debled do not reveal the slightest trace of any

hostility, even less of fundamental hostility; those

challenges are accordingly completely unfounded."

C. Proceedings in the Court of Cassation

20. On 18 April 1988 Dr Debled appealed on points of law against

the decision of 15 March 1988. Two of his five grounds were based on

Article 6 para. 1 (art. 6-1) of the Convention and the general

principle of law that a judge must be impartial.

In his first submission he also alleged a breach of Article 43

of the Royal Decree of 6 February 1970 governing the organisation and

functioning of the councils of the Ordre des médecins and of Articles 2

and 837 of the Judicial Code (see paragraphs 25 and 26 below).

Firstly, there was no legal justification for the decision to join the

challenges to the merits and, secondly, those members whose

impartiality had been called into question could not take part in a

decision to postpone a ruling on the applications concerning them

without engendering reasonable doubts as to the impartiality of the

tribunal required to determine the merits of the challenges and of the

charges.

In his second submission Dr Debled complained of the fact that

the challenges against Dr Cattiez, Dr Andri, Dr Raickman and Judge

Thiry had been considered ill-founded "admittedly without the

challenged member being present, but each time in the presence of the

other challenged members, whereas the grounds for the challenges [were]

identical".

21. In a judgment of 13 April 1989 the Court of Cassation dismissed

the appeal. It observed, in particular, that:

" ... since the members of the Board who had been challenged

did not take part in the decision on the individual challenges

concerning them, the mere fact that they participated in the

decisions on the other challenges, made on the basis of the

grounds reproduced in the appeal submission, does not

constitute a breach of either the legislation or the general

principle of law referred to by the appellant."

II. Relevant domestic law

A. Royal Decree no. 79 of 10 November 1967 relating to the Ordre

des médecins

22. The Ordre des médecins is currently governed by Royal

Decree no. 79 of 10 November 1967, issued pursuant to an Act of

31 March 1967 "investing the King with certain powers with a view to

ensuring economic revival, acceleration of regional reconversion and

a stable, balanced budget".

That decree provides in particular:

Article 12

"1. The French-language Appeals Board and the

Dutch-language Appeals Board shall each be composed of:

1° five full members and five substitute members, who are

medical practitioners, elected for six years and entitled to

stand for re-election. Each Provincial Council shall elect

one of the five members of the Appeals Board corresponding to

the language it uses. The member shall be elected from among

the practitioners of Belgian nationality who have been on the

council's register for at least one year when the election is

held ...

2° five full members and five substitute members, who are

conseillers (judges) at the Court of Appeal, appointed by the

King for six years;

...

2. The King shall designate the president and rapporteurs

of each board from among the judicial members.

..."

Article 25

"...

4. The Appeals Boards shall take cognisance of all

aspects of a case, even where only the medical practitioner

has appealed.

The Appeals Board must have a two-thirds majority to impose

a penalty where the Provincial Council did not so decide or to

impose a more severe penalty than that decided by the

council."

B. The Royal Decree of 6 February 1970 governing the organisation

and functioning of the councils of the Ordre des médecins

23. In accordance with Royal Decree no. 79, the Royal Decree of

6 February 1970, as amended on 9 August 1971 and 3 December 1979,

governs the organisation and functioning of the councils of the Ordre.

24. The councils, which are responsible for "ensuring observance

of the rules of medical ethics and upholding the reputation, standards

of discretion, probity and dignity of the members of the Ordre", are

required to "discipline misconduct by registered members in or in

connection with the practice of their profession and serious misconduct

committed outside the realm of their professional activity, whenever

such misconduct is liable to damage the reputation or dignity of the

profession" (Article 6, 2°, of Royal Decree no. 79).

In addition to a warning, censure or reprimand, the councils

are empowered to suspend the right to practise medicine for a period

not exceeding two years or to strike the practitioner in question off

the register of the Ordre (Article 16).

25. The following provisions are relevant to the instant case:

Article 12

"The Appeals Boards' deliberations and decisions shall be

valid only if, in addition to the registrar, at least three

elected members and three designated members are present.

Without prejudice to the application of the provisions of

Article 32 of this decree, the Appeals Boards' decisions shall

be taken by a majority vote."

Article 34

"An application to the Appeals Board to set aside its own

decision given in absentia shall be filed by registered letter

addressed to the president of the Appeals Board concerned."

Article 40

"A medical practitioner may avail himself of his right to

challenge the members of the Provincial Council and Appeals

Board required to give a decision concerning him."

Article 41

"Any member of the Provincial Council or Appeals Board may

be challenged for the reasons laid down in Article 828 of the

Judicial Code."

Article 42

"If he is not to forfeit his right to challenge the members

of the council or board, the medical practitioner must, at the

latest before the case is pleaded at the hearing, submit to

the president of the competent council or board an

application, which must be dated and signed and which shall

set out the names of the challenged members and the grounds

for the challenge."

Article 43

"The president of the council or board shall immediately

inform the member at whom the challenge is directed; he shall

submit the challenge to the council or board, which shall take

a majority vote on it, after hearing the challenged member but

without that member being present.

The reasoned decision shall be served on the medical

practitioner without delay.

An appeal shall lie against a decision by the Provincial

Council dismissing a challenge; such an appeal must be lodged

within eight days of the notification of the decision."

C. The Judicial Code

26. The relevant provisions of the Judicial Code read as follows:

Article 2

"The rules set out in this Code shall apply to all

proceedings except those governed by legislation that has not

been expressly repealed or by principles of law whose

application is incompatible with that of the provisions of the

Code."

Article 828

"Any judge may be challenged for the following reasons:

...

7° if the judge is the guardian (tuteur), auxiliary guardian

(subrogé tuteur) or limited guardian (curateur), temporary

trustee (administrateur provisoire) or guardian ad litem

(conseil judiciaire) ... of one of the parties; if he is an

administrator or agent (commissaire) of any establishment,

company or association which is a party to the case; ...

...

11° if there is fundamental hostility (inimitié capitale)

between him and one of the parties; if he has made attacks,

proffered insults or uttered threats, in speech or in writing,

since the commencement of the proceedings or in the six months

preceding the challenge."

Article 837

"From the day on which the judge is notified, all judgments

and proceedings shall be suspended.

Nevertheless, if one of the parties maintains that the

proceedings are urgent and that the delay involves a risk,

that party may request the president of the relevant court to

organise a hearing of the interlocutory application; ...

In allowing that request, the president shall order that

another judge should deal with the application."

27. According to Belgian legal theory, "fundamental hostility

exists if facts of a sufficiently serious nature clearly reveal that

the judge feels real hatred or at least animosity such that his

judgment is destroyed or impaired" (Fettweis, Manuel de procédure

civile, 1987, p. 429, note 1).

PROCEEDINGS BEFORE THE COMMISSION

28. Dr Debled's application (no. 13839/88) was lodged with the

Commission on 17 November 1988. He alleged a breach of the right to

an impartial tribunal and a fair trial, as guaranteed by Article 6

para. 1 (art. 6-1) of the Convention.

29. On 3 September 1991 the Commission declared admissible the

complaint based on the lack of impartiality of the Appeals Board of the

Ordre des médecins when it examined the challenges. It considered that

the other complaints were inadmissible. In its report of

16 February 1993 (Article 31) (art. 31) it expressed the unanimous

opinion that there had not been a violation of Article 6 para. 1

(art. 6-1). The full text of the Commission's opinion is reproduced

as an annex to this judgment**.

_______________

* Note by the Registrar. For practical reasons this annex will appear

only with the printed version of the judgment (volume 292-B of Series

A of the Publications of the Court), but a copy of the Commission's

report is obtainable from the registry.

_______________

GOVERNMENT'S FINAL SUBMISSIONS TO THE COURT

30. In their memorial the Government requested the Court

"to hold that the facts of the present case disclose no

violation by the Belgian State of Article 6 para. 1 (art. 6-1)

of the European Convention on Human Rights and consequently

rule that there are no grounds for awarding just

satisfaction".

AS TO THE LAW

THE ALLEGED BREACHES OF ARTICLE 6 PARA. 1 (art. 6-1)

31. Dr Debled complained that his case had not been heard by "an

independent and impartial tribunal established by law" within the

meaning of Article 6 para. 1 (art. 6-1) of the Convention, which

provides:

"In the determination of his civil rights and obligations

..., everyone is entitled to a ... hearing ... by an

independent and impartial tribunal established by law ..."

He criticised especially the way in which the Appeals Board of

the Ordre des médecins had examined the challenges lodged against four

of its members.

A. Tribunal established by law

32. Before the Court the applicant argued that the disciplinary

bodies of the Ordre did not constitute tribunals "established by law".

Royal Decrees nos. 78 and 79, under which provision was made for those

bodies, were falsified public documents. They had been adopted under

a procedure which had been flawed by numerous defects, in particular

as regards the formalities completed between the submission of the

draft decrees to the Conseil d'Etat for its opinion and their

publication in the Moniteur belge. Responsibility for this lay with

the medical unions; they had brought pressure to bear on ministers with

a view to ensuring that the disciplinary bodies set up would be

completely won over to their cause.

33. This is a new complaint that was not raised before the

Commission, whose decision on admissibility determines the scope of the

Court's jurisdiction. The Court therefore has no jurisdiction to

entertain it (see, mutatis mutandis, the Olsson v. Sweden (no. 2)

judgment of 27 November 1992, Series A no. 250, pp. 30-31, para. 75).

B. Independent and impartial tribunal

34. As his second submission, Dr Debled maintained that the Appeals

Board lacked the independence and impartiality required under

Article 6 para. 1 (art. 6-1).

Firstly, the disciplinary bodies of the Ordre des médecins, in

general, and the Appeals Board, in particular, were mere offshoots of

the medical unions. Union members, who accounted for only 15% of the

registered voters, managed to secure the election of their candidates

to the Provincial Councils by uniting their votes. This enabled

them to take control of the Appeals Board through the application of

Article 12 of Royal Decree no. 79. In addition, deliberations and

voting were so organised within the Appeals Board (Article 25 para. 4,

sub-paragraph 2, of the decree) as to make it very easy for the unions

to have disciplinary measures imposed on an "opponent", such as the

applicant. Furthermore, the fact that there was no tribunal to which

jurisdiction could be transferred in the event of a challenge to the

members of the Appeals Board en bloc compounded the lack of

independence of the contested system.

Secondly, Judge Thiry together with a number of officials of

the medical unions had founded the Société belge d'éthique et de morale

médicale (Belgian society for medical ethics and morals) funded by the

unions and the Ordre des médecins. Mr Thiry was its Vice-Chairman.

In addition, his son was the only lawyer recommended by the unions.

The doctors whom the applicant had challenged had all had a personal

interest in the outcome of the case because they embraced "the concept

of medicine as an industry, which is very costly for the health and

invalidity insurance schemes" and showed "complete contempt for the

medical practitioner's social role" (see paragraphs 17 and 18 above).

35. The Government and the Delegate of the Commission pointed out

that the complaints challenging the independence of the Appeals Board

were first raised before the Court and therefore fell outside the scope

of its jurisdiction. Those relating to the Board's impartiality were,

they considered, wholly unfounded.

36. The Court finds it unnecessary in this case to examine the

issues of independence and impartiality separately.

On the question of objective or structural impartiality, the

Court has already had occasion to examine some of the complaints made

by the applicant in relation to the Appeals Board's independence. In

the Albert and Le Compte v. Belgium judgment of 10 February 1983

(Series A no. 58, pp. 17-18, para. 32) it held that "the manner of

appointment of the medical practitioners sitting on the Appeals

[Boards] provides no cause for treating those individuals as biased;

although elected by the Provincial Councils ... , they act not as

representatives of the Ordre des médecins but - like the judicial

members nominated by the Crown - in a personal capacity".

That finding is in no way undermined by the applicant's

submissions relating to Article 25 para. 4, sub-paragraph 2, of Royal

Decree no. 79 and to the lack of a tribunal to which jurisdiction could

be transferred. Firstly, the purpose of the above-mentioned provision

is plainly only to make it difficult to impose a more severe

disciplinary penalty on appeal, and secondly the fact that there is no

tribunal to which jurisdiction could be transferred does not suffice

to establish the Appeals Board's lack of impartiality or independence.

37. The only question which remains to be answered is whether the

challenges against four members of the Appeals Board of the Ordre des

médecins were examined in a manner compatible with Article 6 (art. 6)

of the Convention since each of the challenged members took part in the

decision concerning his colleagues (see paragraph 19 above). This

could affect the personal impartiality of each of the challenged

members of the Board, which must, however, be presumed until there is

proof to the contrary (see the Albert and Le Compte judgment previously

cited, pp. 17-18, para. 32).

The participation of judges in a decision concerning challenges

against one of their colleagues can pose problems if identical

challenges have been directed against them. But the special

circumstances of the present case must be taken into account.

Dr Debled had challenged several members of the Appeals Board; their

exclusion from all the decisions concerning those challenges would have

paralysed the whole disciplinary system. He based each of his

complaints concerning the challenged members on almost identical

grounds, which were general and abstract in nature and were inferred

from their membership of the medical unions or their alleged

connections with the unions. No reference was made to specific,

material facts that could have revealed personal animosity or hostility

towards him. Such vague objections cannot be regarded as well-founded

(ibid., pp. 17-18, para. 32).

38. Accordingly, there has been no breach of Article 6 para. 1

(art. 6-1).

FOR THESE REASONS, THE COURT UNANIMOUSLY

Holds that there has been no breach of Article 6 para. 1

(art. 6-1).

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 22 September 1994.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Acting Registrar