Case: Diennet v. France
Judgement date: 26 September 1995
Topic: Health
Aspect: Disciplinary proceedings against health professionals

Summary of the facts:
The applicant, a French doctor, was struck off the regional doctors’ register for reasons of professional misconduct after he admitted that he had been advising his patients, who wished to lose weight, from a distance. He never met his patients, did not monitor or adjust the treatment prescribed, and during his frequent absences they were advised by his secretarial staff. He complained that the professional disciplinary bodies deciding on his case had not been impartial and that the hearings before them had not been held in public.

Summary of the Court's findings:
The Court found a violation of Article 6 § 1 (right to a fair trial) of the Convention, because the hearings had not been held in public, and no violation of Article 6 § 1 in respect of the complaint that the disciplinary bodies had not been impartial.

The facts:
I. Circumstances of the case
7. Dr Marcel Diennet, a general practitioner living in Paris, was
the object of proceedings for professional misconduct.
8. On 11 March 1984 the Regional Council of the Ile-de-France ordre
des médecins (Medical Association) struck him off the register. Its
reasons for doing so included the following:
"...
The statements made by the doctor against whom proceedings have
been brought amply established the 'method of consultation by
correspondence' introduced by him. Dr Diennet sent patients whom
he could not, or did not wish to, see at his surgery a printed
letter containing a proposal for a consultation by means of a
detailed questionnaire to enable him to make out for each patient
an appropriate prescription for a slimming course.
...
By using this method, Dr Diennet never met his patients, did not
personally make any examination of them and did not monitor or
adjust the treatment prescribed. During his absences from
France, which he admits were numerous, the patients were followed
up by his secretarial staff, a fact which he does not deny.
The conduct of which he stands accused is amply substantiated and
seriously contravenes the provisions of Articles 15, 18, 23, 33
and 36 of the Code of Professional Conduct. Such conduct is
unacceptable on the part of a doctor and bears no relation to the
medical profession.
These offences call for severe punishment.
..."
9. The applicant appealed to the disciplinary section of the
National Council of the ordre des médecins, which on 30 January 1985
ordered that he should be disqualified from practising medicine for
three years instead of being struck off.
10. On an application by Dr Diennet, the Conseil d'Etat quashed that
decision on 15 January 1988 on the ground that there had been an
irregularity in the proceedings which had led to it, as the
disciplinary section of the National Council had ruled that pleadings
filed by the doctor after the time-limit but before the hearing were
inadmissible. The case was remitted to the disciplinary section.
11. On 26 April 1989, after a hearing in private, the disciplinary
section of the National Council again disqualified the applicant from
practising medicine for three years.
12. Dr Diennet appealed on points of law to the Conseil d'Etat. He
argued, in particular, that the decision concerning him had not been
reached in accordance with Article 6 para. 1 (art. 6-1) of the
Convention, as three of the seven members of the disciplinary section
of the National Council, including the rapporteur, had already heard
the case on the occasion of the first decision - a circumstance that
did not satisfy the impartiality requirement of Article 6 para. 1
(art. 6-1) - and the hearing on 26 April 1989 had not been held in
public.
13. On 29 October 1990 the Conseil d'Etat dismissed the appeal in the
following terms:
"...
As to the lawfulness of the impugned decision
Firstly, the provisions of Article 6 para. 1 (art. 6-1) of the
European Convention for the Protection of Human Rights and
Fundamental Freedoms are not applicable to disciplinary
tribunals, which do not hear criminal proceedings and do not
determine civil rights and obligations. Mr Diennet accordingly
cannot challenge the decision appealed against on the grounds
that it contravened the provisions of Article 6 para. 1
(art. 6-1) of the aforementioned Convention relating to the
holding of hearings in public and the impartiality of tribunals.
Secondly, although section 11 of the Law of 31 December 1987
provides that a tribunal to which a case has been remitted by the
Conseil d'Etat must, unless the nature of the tribunal makes it
impossible, be differently constituted from the one that gave the
original decision, the disciplinary section of the ordre des
médecins was, having regard to its nature, entitled, for the
purpose of hearing the case remitted to it by the Conseil d'Etat
acting in its judicial capacity in a decision of 15 January 1988,
to be constituted again as it had been on 30 January 1985, when
it had given its first ruling. The grounds of appeal based on
an infringement of the principle of the impartiality of tribunals
and on the statutory provisions previously cited must therefore
fail.
..."
II. The disciplinary rules governing the medical profession
14. It is compulsory for all doctors entitled to practise their
profession in France to belong to the ordre national des médecins.
This body ensures, among other things, that the principles of morality,
probity and dedication essential to the practice of medicine are upheld
and that all its members fulfil their professional duties and comply
with the rules laid down in the Code of Professional Conduct. It
discharges this function through département councils, regional
councils and the National Council of the ordre (Articles 381 and 382
of the Public Health Code).
A. Procedure
1. Before the professional disciplinary bodies
(a) The regional councils
15. The regional councils exercise disciplinary jurisdiction at first
instance within the ordre des médecins. Cases may be brought before
them by the councils of the départements within their territorial
jurisdiction and individual registered medical practitioners, among
others (Article L. 417 of the Public Health Code).
(b) The disciplinary section of the National Council
16. After each election of a proportion of its members (every two
years) the National Council of the ordre des médecins elects eight of
its thirty-eight members to constitute a disciplinary section - chaired
by a senior member of the Conseil d'Etat - with jurisdiction to hear
appeals (Articles L. 404 to 408 and L. 411 of the Public Health Code).
Substitute members are elected in the same way as full members
(Article 21 of Decree no. 48-1671 of 26 October 1948, as amended,
concerning, inter alia, the functioning of the disciplinary section).
The disciplinary section can only deliberate validly if, in
addition to its chairman, at least four of its members are present.
Where the number of members present is an even number, the youngest
practitioner must withdraw (Article 24, first paragraph, of the Decree
of 26 October 1948, as amended).
Appeals have a suspensive effect (Article L. 411 of the Public
Health Code).
2. In the Conseil d'Etat
17. An appeal on points of law against decisions of the disciplinary
section lies to the Conseil d'Etat (Article 22 of the Decree of
26 October 1948, as amended, and Article L. 411 of the Public Health
Code) "as provided in ordinary administrative law" (Article L. 411 in
fine of the Public Heath Code).
Section 11 - which came into force on 1 January 1989 - of
Law no. 87-1127 of 31 December 1987 reforming administrative
proceedings provides:
"...
If it quashes a decision by an administrative tribunal of last
instance, the Conseil d'Etat may either remit the case to the
same tribunal, which shall, unless the nature of the tribunal
makes it impossible, be differently constituted, or remit the
case to another tribunal of the same type, or determine the
merits of the case itself where the interests of sound
administration of justice warrant it.
Where a second appeal on points of law is brought in a case, the
Conseil d'Etat shall give a final ruling on it."
B. Penalties
18. The following penalties may be imposed on doctors found guilty
of disciplinary offences: a warning; a reprimand; temporary or
permanent disqualification from performing some or all of the medical
duties carried out for or remunerated by the State, départements,
municipalities, public corporations or private corporations promoting
the public interest, or the medical duties carried out pursuant to
welfare legislation; temporary disqualification from practising
medicine (for a maximum of three years); and striking off the register
of the ordre.
The first two penalties also entail loss of the right to be a
member of a département council, a regional council or the National
Council of the ordre for three years; the other penalties entail
permanent loss of that right. A doctor who has been struck off cannot
have his name entered in another register (Article L. 423 of the Public
Health Code).
C. Right of challenge
19. A doctor against whom proceedings are brought may exercise a
right of challenge before a regional council or the National Council,
as laid down in Articles 341 to 355 of the New Code of Civil Procedure
(Article L. 421 of the Public Health Code).
Article 341 of the New Code of Civil Procedure provides that a
judge may be challenged:
"...
1. if he or his spouse has a personal interest in the dispute;
2. if he or his spouse is a creditor, debtor, heir presumptive
or donee of one of the parties;
3. if he or his spouse is a blood relative or a relative by
marriage of one of the parties or of the spouse of one of the
parties up to the fourth degree inclusive;
4. if there have been or are still legal proceedings pending
between him or his spouse and one of the parties or the spouse
of one of the parties;
5. if the case has earlier come before him as a judge or
arbitrator or if he has advised one of the parties;
6. if the judge or his spouse is responsible for administering
the property of one of the parties;
7. if there is a relationship of subordination between the
judge or his spouse and one of the parties or the spouse of one
of the parties;
8. if it is common knowledge that friendship or enmity
subsists between the judge and one of the parties;
..."
D. Holding of proceedings in public
1. The rules applicable to the instant case
20. Article 15, second paragraph, and Article 26, seventh paragraph,
of Decree no. 48-1671 of 26 October 1948, as amended, provided:
"Hearings shall not be held in public and the deliberations shall
remain secret."
The decisions of the disciplinary bodies of the ordre were
recorded in a special register to which third parties did not have
access and they were not published. They were notified to certain
individuals and institutions only.
2. The present rules
21. Those rules were amended by Decree no. 93-181 of 5 February 1993.
Hearings before a body of the ordre sitting to determine
disciplinary charges are now held in public. However, the chairman of
the body in question may, of his own motion or on an application by one
of the parties or by the person whose complaint has led to the case
being brought before a regional council, exclude the public from all
or part of the hearing in the interests of public order or where
respect for private life or medical confidentiality so justifies
(Articles 13, 15 and 26 of the Decree of 26 October 1948, as amended
by the Decree of 5 February 1993).
Decisions are now made public, but the bodies in question may
decide not to include in the certified copies any details - such as
surnames - which might be incompatible with respect for private life
or medical confidentiality (Articles 13 and 28 of the Decree of
26 October 1948, as amended by the Decree of 5 February 1993).

Relevant law and the Court's assessment:
PROCEEDINGS BEFORE THE COMMISSION
22. Dr Diennet applied to the Commission on 18 April 1991. He
alleged a violation of the right to a hearing in public and by an
impartial tribunal, guaranteed in Article 6 para. 1 (art. 6-1) of the
Convention.
23. The Second Chamber of the Commission declared the application
(no. 18160/91) admissible on 2 December 1992 and, under Article 20
para. 4 (art. 20-4) of the Convention, subsequently relinquished
jurisdiction in favour of the plenary Commission.
In its report of 5 April 1994 (Article 31) (art. 31), it
expressed the unanimous opinion that there had been a violation of the
right to a hearing in public and, by fourteen votes to nine, the
opinion that there had not been a violation of the right to an
impartial tribunal. The full text of the Commission's opinion and of
the partly dissenting opinion contained in the report is reproduced as
an annex to this judgment (1).
_______________
1. Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 325-A of
Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
24. In their memorial the Government asked the Court "to reject
Mr Diennet's application".
25. The applicant asked the Court to
"hold that in the proceedings which ended with the Conseil
d'Etat's judgment of 9 October 1990 there was a twofold violation
by France of Article 6 (art. 6) of the European Convention on
Human Rights, firstly in that the disciplinary tribunal did not
hear his case in public, and secondly in that the disciplinary
tribunal was not constituted impartially within the meaning of
the said Article 6 (art. 6)".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE
CONVENTION
26. Dr Diennet complained that he had not had a public hearing by an
impartial tribunal. He relied on Article 6 para. 1 (art. 6-1) of the
Convention, which provides:
"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. Judgment shall be
pronounced publicly but the press and public may be excluded from
all or part of the trial in the interests of morals, public order
or national security in a democratic society, where the interests
of juveniles or the protection of the private life of the parties
so require, or to the extent strictly necessary in the opinion
of the court in special circumstances where publicity would
prejudice the interests of justice."
A. Applicability of Article 6 para. 1 (art. 6-1)
27. It is clear from the Court's settled case-law that disciplinary
proceedings in which, as in the instant case, the right to continue to
practise medicine as a private practitioner is at stake give rise to
"contestations (disputes) over civil rights" within the meaning of
Article 6 para. 1 (art. 6-1) (see, among other authorities, the König
v. Germany judgment of 28 June 1978, Series A no. 27, pp. 29-32,
paras. 87-95; the Le Compte, Van Leuven and De Meyere v. Belgium
judgment of 23 June 1981, Series A no. 43, pp. 19-23, paras. 41-51; and
the Albert and Le Compte v. Belgium judgment of 10 February 1983,
Series A no. 58, pp. 14-16, paras. 25-29). The applicability of
Article 6 para. 1 (art. 6-1) to the circumstances of this case, which
was in issue before the Commission but was not disputed before the
Court, is therefore not in doubt.
28. The Court considers it unnecessary to determine whether, as the
applicant maintained, there was any "criminal charge" against him
within the meaning of Article 6 para. 1 (art. 6-1) of the Convention:
as in the König, Le Compte, Van Leuven and De Meyere, and Albert and
Le Compte cases (judgments previously cited, p. 33, para. 96,
pp. 23-24, para. 53, and p. 17, para. 30, respectively), those of the
Article 6 para. 1 (art. 6-1) rules which the applicant alleged to have
been breached apply to both civil and criminal matters.
B. Compliance with Article 6 para. 1 (art. 6-1)
29. Dr Diennet submitted that there had been a breach of Article 6
para. 1 (art. 6-1) both because the proceedings before the professional
disciplinary bodies had not been public and because one of those bodies
had not been impartial.
1. Holding of proceedings in public
30. The applicant complained that the proceedings before the
Ile-de-France Regional Council and the disciplinary section of the
National Council of the ordre des médecins had not been held in public.
31. The Government did not dispute the fact. They recognised,
moreover, that the applicant could not be regarded as having tacitly
waived a public hearing by not seeking one, inasmuch as the French
rules expressly excluded one (see paragraph 20 above and, among other
authorities and mutatis mutandis, the H. v. Belgium judgment of
30 November 1987, Series A no. 127-B, p. 36, para. 54). They
considered, nevertheless, that the Conseil d'Etat had compensated for
that shortcoming by sitting in public on 15 January 1988 and
15 October 1990. When sitting in disciplinary cases, the Conseil
d'Etat had, they continued, powers of review that went beyond questions
of law alone since it verified the accuracy of the facts which formed
the basis of the charges and the correctness of the legal
classification of those facts and also, where appropriate, reviewed the
assessment made by the tribunal of fact, by checking that evidence had
not been misinterpreted; it had proceeded in that manner in the instant
case.
In the alternative, the Government argued that, at all events,
the misconduct of which the applicant had been accused related directly
to practice of the medical profession and therefore came under the
exceptions provided for in Article 6 para. 1 (art. 6-1). The
disciplinary bodies of the ordre were under a duty to verify the
factual accuracy of the charges against the applicant, against whom
proceedings had been taken for having issued medical prescriptions for
the treatment of obesity without examining his patients or following
up their treatment. Specific examples therefore had to be cited during
the proceedings, so that inevitably, if these had been held in public,
professional confidentiality would have been jeopardised and patients'
private lives intruded upon.
32. The Commission, referring to the Court's case-law on the matter,
found that there had been a violation of the right to public
proceedings.
33. The Court reiterates that the holding of court hearings in public
constitutes a fundamental principle enshrined in paragraph 1 of
Article 6 (art. 6-1) (see, as the most recent authority, the
Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A
no. 263, p. 19, para. 58). This public character protects litigants
against the administration of justice in secret with no public
scrutiny; it is also one of the means whereby confidence in the courts
can be maintained. By rendering the administration of justice
transparent, publicity contributes to the achievement of the aim of
Article 6 para. 1 (art. 6-1), namely a fair trial, the guarantee of
which is one of the fundamental principles of any democratic society,
within the meaning of the Convention (see, for example, the Sutter v.
Switzerland judgment of 22 February 1984, Series A no. 74, p. 12,
para. 26).
Admittedly, the Convention does not make this principle an
absolute one, since by the very terms of Article 6 para. 1 (art. 6-1),
"... the press and public may be excluded from all or part of the trial
in the interests of morals ..., where the ... protection of the private
life of the parties so require[s], or to the extent strictly necessary
in the opinion of the court in special circumstances where publicity
would prejudice the interests of justice".
34. The Court takes account of several factors.
Firstly, the Government did not dispute that the hearings before
the disciplinary bodies of the ordre des médecins had not been held in
public.
Secondly, where the Conseil d'Etat hears appeals on points of law
from decisions of the disciplinary section of the National Council of
the ordre des médecins, it cannot be regarded as a "judicial body that
has full jurisdiction", in particular because it does not have the
power to assess whether the penalty was proportionate to the
misconduct; the fact that hearings before it are held in public is
therefore not sufficient to remedy the defect found to exist at the
stage of the disciplinary proceedings (see, inter alia and mutatis
mutandis, the Albert and Le Compte judgment previously cited, p. 16,
para. 29, and p. 19, para. 36).
Lastly, while the need to protect professional confidentiality
and the private lives of patients may justify holding proceedings in
camera, such an occurrence must be strictly required by the
circumstances. In the instant case, however, as the applicant and the
Commission rightly pointed out, the proceedings were to deal only with
the "method of consultation by correspondence" adopted by Dr Diennet
(see paragraph 8 above). There was no good reason to suppose that
either the tangible results of that method in respect of a given
patient or any confidences that Dr Diennet might have picked up in the
course of practising his profession would be mentioned. If it had
become apparent during the hearing that there was a risk of a breach
of professional confidentiality or an intrusion on private life, the
tribunal could have ordered that the hearing should continue in camera.
At all events, the public was excluded because of the automatic prior
application of the provisions of the Decree of 26 October 1948 (see
paragraph 20 above). That decree was amended after the events in the
instant case had occurred; with a number of strictly defined
exceptions, hearings before a body of the ordre in disciplinary
proceedings are now held in public (see paragraph 21 above).
35. In sum, there has been a breach of Article 6 para. 1 (art. 6-1)
in that the applicant did not receive a "public" hearing before the
Ile-de-France Regional Council and the disciplinary section of the
National Council of the ordre des médecins.
2. Impartiality
36. The applicant did not contest the personal impartiality of the
members of the disciplinary section of the National Council of the
ordre des médecins as constituted when his case was referred back to
it by the Court of Cassation.
On the other hand, he did state that the combination of several
factors objectively gave rise to very serious doubts about the
impartiality of the section as such: not only had three of its seven
members - including the rapporteur - heard the case on appeal but the
second decision had been identical with the first one, except for the
addition of a paragraph in which an amnesty that had been enacted in
the meantime was taken into account.
He maintained that the three members in question could have been
replaced by substitutes. In this connection, he could not be blamed
for not having challenged the three members, as, on the one hand, such
a procedure - which was exceptional in French law - would have been
bound to fail and, on the other hand, the defect relating to the
reasons given for the disciplinary section's second decision did not
become apparent to him until the decision was served on him, when he
was able to see that it was identical with the first decision.
37. The Government and the Commission referred to the Ringeisen v.
Austria judgment of 16 July 1971, according to which "... it cannot be
stated as a general rule resulting from the obligation to be impartial
that a superior court which sets aside an administrative or judicial
decision is bound to send the case back to a different jurisdictional
authority or to a differently composed branch of that authority"
(Series A no. 13, p. 40, para. 97). The Government said that
section 11 of the Law of 31 December 1987 reforming administrative
proceedings expressly provided that if the Conseil d'Etat remitted a
case to the same tribunal, the latter had to be differently constituted
unless the nature of the tribunal made it impossible (see paragraph 17
above); and as it was the one and only body of its kind, the nature of
the disciplinary section of the National Council of the ordre des
médecins did make it impossible.
As to the complaint about the reasoning, the Government pointed
out that the first decision had been quashed only on account of a
procedural irregularity and no new facts had been relied on after the
case had been remitted, so that the similarity of the texts of the two
decisions, even taken in conjunction with the membership of the
disciplinary section as constituted on the second occasion, likewise
did not justify any objective doubts as to the impartiality of the
disciplinary section.
38. In the Court's view, no ground for legitimate suspicion can be
discerned in the fact that three of the seven members of the
disciplinary section had taken part in the first decision (see the
Ringeisen judgment previously cited, loc. cit., and paragraph 12
above). Furthermore, even if the second decision had been differently
worded, it would necessarily have had the same basis, because there
were no new factors. The applicant's fears therefore cannot be
regarded as having been objectively justified.
39. There has accordingly been no breach of Article 6 para. 1
(art. 6-1) in this respect.
II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
40. Article 50 (art. 50) of the Convention provides:
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising
from the ... Convention, and if the internal law of the said
Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the
Court shall, if necessary, afford just satisfaction to the
injured party."
A. Damage
41. The applicant sought, firstly, 500,000 French francs (FRF) in
respect of non-pecuniary damage and FRF 500,000 in compensation for the
"harassment" that he had suffered as a consequence of the disciplinary
penalty that had been imposed on him.
42. The Delegate of the Commission left the matter to the Court's
discretion. However, he pointed out that the applicant's claim was
based on the assumption that there had been a double breach of
Article 6 para. 1 (art. 6-1), so that it would be appropriate not to
award the whole of the amount sought if the Court agreed with the
Commission's opinion.
43. Like the Government, the Court considers that the finding of a
breach of Article 6 para. 1 (art. 6-1) constitutes in itself sufficient
just satisfaction.
B. Costs and expenses
44. Dr Diennet also sought FRF 47,000 in respect of the costs and
expenses incurred before the French disciplinary and judicial bodies
and FRF 30,000, plus FRF 3,720 in value added tax (VAT), in respect of
those relating to the proceedings before the Convention institutions.
45. The Government left the matter to the Court's discretion. The
Delegate of the Commission did not express a view.
46. Taking into account the fact that it has accepted only one of the
complaints and making its assessment on an equitable basis, the Court
awards the applicant FRF 20,000 including VAT.