ITEMID: 001-118573
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF FAZLIYSKI v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Civil rights and obligations);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Public judgment);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1962 and lives in Sofia.
6. In 1995 the applicant was appointed as an inspector at the National Security Service of the Ministry of Internal Affairs. In 2002 he was transferred to the Ministry’s National Security Directorate (the Ministry’s internal structure had been altered in 1997). At that time he had the rank of major. His duties included counterintelligence, the recruitment and managing of secret agents, the gathering and dissemination of information from secret sources, secret surveillance, etc.
7. In November 2002 a proposal was made for the applicant’s disciplinary dismissal. The proposal was prompted by an internal investigation which found indications that the applicant had engaged, aside from his duties at the Ministry, in fish farming, and that he had sought to resolve disputes with the persons employed by him by threatening them with his position. It was felt that these activities were incompatible with the duties of an officer of the National Security Directorate and tarnished the reputation of the service.
8. The proposal was not upheld due to the lack of sufficient evidence.
9. On 6 March 2003 the Director of the National Security Directorate sent a letter to the head of the Ministry’s Psychology Institute (see paragraph 33 below). He referred in detail to the above facts and suggested that the applicant be subjected to psychological assessment on the basis of Instruction no. I37 (see paragraph 32 below).
10. On 19 March 2003 the Director of the National Security Directorate ordered the applicant to present himself for assessment at the Ministry’s Psychology Institute.
11. The applicant underwent a psychological assessment on 16 April 2003. It consisted of a psychological test, an interview and a polygraph test.
12. The results of the assessment were available on 9 May 2003. The psychologist who had carried it out described the results of his observations and of the polygraph test, and expressed the opinion that the applicant was mentally unfit to work at the Ministry of Internal Affairs. The document was classified and the applicant was not allowed to see it.
13. On 5 June 2003 the Director of the National Security Directorate proposed to the Minister of Internal Affairs to dismiss the applicant from his post under section 253(1)(5) of the Ministry of Internal Affairs Act 1997 and regulation 251(1)(6) of the Act’s implementing regulations (see paragraphs 30 and 31 below). In his proposal he described in detail the attempt to dismiss the applicant on disciplinary grounds and the results of the psychological assessment. The applicant was allowed to have sight of the proposal the same day.
14. In an order of 27 June 2003 the Minister of Internal Affairs dismissed the applicant by reference to the legal provisions mentioned in the proposal.
15. The applicant was acquainted with the order on 13 August 2003 and noted his disagreement with the grounds for issuing it.
16. On 26 August 2003 the applicant sought judicial review of the Minister’s order. He argued, inter alia, that it had not been duly reasoned and that the psychological assessment on the basis of which it had been issued had not been objective.
17. In the course of the proceedings before the Supreme Administrative Court the Ministry presented a copy of the applicant’s psychological assessment. The proceedings as a whole were then classified, apparently because the case file contained a classified document.
18. The applicant was initially represented by two lawyers. The first of them withdrew from the proceedings because he could not obtain the requisite security clearance to be able to have access to the documents in the case file. The second also withdrew because she did not have enough legal experience to be granted rights of audience before the Supreme Administrative Court. The applicant accordingly retained another counsel who had the requisite experience and security clearance.
19. In her written pleadings counsel for the Ministry submitted, inter alia, that after the applicant had been found mentally unfit for work, under section 253(1)(5) of the Ministry of Internal Affairs Act 1997 (see paragraph 30 below), the Minister had been bound to dismiss him from his post.
20. A threemember panel of the Supreme Administrative Court heard the case on 4 October 2004. Counsel for the applicant argued, inter alia, that the psychological assessment had not been correctly carried out and that its results could not be trusted. Counsel for the Ministry argued, inter alia, that the assessment could not be subjected to judicial scrutiny.
21. In a judgment of 11 October 2004 (реш. № 50 от 11 октомври 2004 г. по адм. д. № С65/2003 г., ВАС, V о.), the threemember panel rejected the applicant’s claim, finding that no breaches of the rules of procedure had occurred in the course of the dismissal procedure. It went on to say that it was not competent to review the results of the psychological assessment carried out by the Ministry’s Psychology Institute. Under the terms of regulation 251(1)(6) of the implementing regulations of the Ministry of Internal Affairs Act 1997 (see paragraph 31 below), such assessments amounted to incontrovertible proof of unfitness for work at the Ministry, and the Ministry’s Psychology Institute was the only body competent to determine that issue. The panel also found no indication that the dismissal order was not in line with the purpose of the law.
22. The applicant appealed on points of law. He challenged, inter alia, the psychological assessment procedure and the independence of the experts who had carried it out. He also contested the threemember panel’s ruling that the Ministry’s Psychology Institute was the only body competent to carry out such an examination and that the court could not scrutinise the correctness of the Institute’s opinion. In an additional memorial filed on 9 March 2005 he pointed out that in a judgment of 8 February 2005 (see paragraph 35 below) another panel of the Supreme Administrative Court had stated that the assessment of mental fitness for work at the Ministry should be amenable to judicial scrutiny.
23. In a final judgment of 17 May 2005 (реш. № 12 от 17 май 2005 г. по адм. д. № С4/2005 г., ВАС, петчл. св), a fivemember panel of the Supreme Administrative Court dismissed the appeal. It held, inter alia, that the psychological assessment procedure had been duly followed, and that the threemember panel had been correct to find that it could not scrutinise the assessment. Its judgment had been given before the judgment of 8 February 2005 which had partly struck down regulation 251(1)(6) of the implementing regulations of the Ministry of Internal Affairs Act 1997 (see paragraph 35 below) and had been based on the wording of that regulation in force before the judgment of 8 February 2005.
24. As the proceedings were classified, the applicant could not obtain copies of the Supreme Administrative Court’s judgments. On 5 December 2005 he asked the court to issue certificates containing the judgments’ operative provisions and indications as to the subject matter of the case. The president of the fivemember panel which had dealt with the case acceded to the request, and on 7 December 2005 the applicant was issued two certificates, one in relation to the threemember panel’s judgment and another in relation to the fivemember panel’s judgment.
25. In the meantime, on 7 November 2005 the applicant requested the reopening of the proceedings.
26. In a judgment of 4 April 2006 (реш. № Я63 от 4 април 2006 г. по адм. д. № С108/2005 г., ВАС, петчл. св) the Supreme Administrative Court rejected the request.
27. On 30 August 2006 a commission appointed by the president of the Supreme Administrative Court declassified the minutes of the hearings before the threemember and fivemember panels, as well as their judgments. It did so by reference to regulation 50(3)(2) of the Regulations for the implementation of the Protection of Classified Information Act 2002, which provides that the level of classification must be changed if it has been set incorrectly.
28. Article 120 of the Constitution of 1991 provides:
“1. The courts shall review the lawfulness of the administration’s acts and decisions.
2. Natural and juristic persons shall have the right to seek judicial review of any administrative act or decision which affects them, save as expressly specified by statute.”
29. Section 2(1) of the Ministry of Internal Affairs Act 1997 (“the 1997 Act”), in force until the end of April 2006, provided that the Ministry’s activities were subject to “civic control [exercised] through the authorities set out in the Constitution and this Act”.
30. Section 253(1)(5) of the Act provided that civil servants employed by the Ministry were to be dismissed from their posts if they were unfit to carry out their duties. Section 253(2) provided that unfitness of work within the meaning of section 253(1)(5) was to be established in the manner laid down in the Act’s implementing regulations. The dismissal order was subject to judicial review (section 258).
31. Regulation 251(1) of the Act’s implementing regulations, which came into force in September 1998 and were repealed in June 2006, specified that unfitness within the meaning of section 253(1)(5) of the Act could result from: (a) a final conviction and effective sentence of imprisonment; (b) the inability to carry out one’s duties effectively, as established by an internal audit; (c) the systematic or repeated commission of disciplinary offences which were not of a level of gravity warranting disciplinary dismissal; (d) a failure to complete the initial professional qualification course; (e) a failure to submit a conflict-of-interest declaration or an incompatibility established on the basis of such a declaration; (f) mental unfitness for work at the Ministry, as established by the Ministry’s Psychology Institute (regulation 251(1)(6)); and (g) a court order preventing the person concerned from holding certain types of employment as a punishment in a criminal case.
32. On 5 March 2001 the Minister of Internal Affairs issued Instruction no. I37 on “the psychological selection and psychological aspects of the appraisal (reselection) of the civil servants (officers, sergeants and civilian staff) employed by the Ministry”. The instruction was issued under, inter alia, regulation 171 of the 1997 Act’s implementing regulations, which provided that the mental and physical fitness of the Ministry’s staff was to be assessed periodically in a manner laid down by the Minister (this regulation was repealed in April 2003). Section 6 of the Instruction provided that those assessments were to be carried out by the Ministry’s Psychology Institute (see paragraph 33 below). By virtue of section 16, the purpose of the psychological assessment of the Ministry’s staff was to determine (a) their current mental condition, (b) diminished motivation, behavioural or emotional inadequacy, or general deadaption leading to low professional effectiveness, or (c) abuse of position for financial gain. In carrying out the assessment of staff suspected of abusing their posts, the Institute’s experts could resort to a polygraph test (section 17(3)(a)). Such persons could be subjected to sporadic assessments with a view to protecting the Ministry from “staff members who ha[d] lost their mental or emotional stability or other professional qualities and [could] cause damage to themselves, the [Ministry] or society through actions or omissions” (section 19(1)). The conclusion of the assessment could be “mentally fit for the post”, “mentally unfit for the post” or “mentally unfit for work at the Ministry of Internal Affairs” (section 24(3)). The results of the assessment could, inter alia, constitute grounds for dismissal under section 253(1)(5) of the 1997 Act and regulation 251(1)(6) of the Act’s implementing regulations (section 26(5)). The conclusion that a person was “mentally unfit for work at the Ministry of Internal Affairs” was final and not subject to review (section 27(3)).
33. The Ministry’s Psychology Institute was set up by the Government in February 1998 for the purpose of carrying out initial and followup psychological examinations of the staff of the Ministry of Internal Affairs, drawing up psychological expert reports, and training the Ministry’s staff (point 1 of Decree no. 25 of 2 February 1998 of the Council of Ministers). At the relevant time its structure and activities were governed by Regulations no. I263 issued by the Minister of Internal Affairs on 13 November 2001 (in May 2010 they were superseded by Regulations no. I1137). Its director was appointed and dismissed by the Minister.
34. In its early caselaw under section 253(1)(5) of the Act and regulation 251(1)(6), the Supreme Administrative Court consistently held that the Institute’s assessment of a person’s mental fitness for work at the Ministry was not subject to judicial review and could not be contested through any means, and that a conclusion that a person was mentally unfit for work at the Ministry required the Minister to dismiss that person (see реш. № 722 от 28 януари 2002 г. по адм. д. № 8056/2001 г., ВАС, петчл. св; реш. № 4441 от 5 септември 2002 г. по адм. д. № 10880/ 2001 г., ВАС, V о.; реш. № 2819 от 25 март 2003 г. по адм. д. № 11276/2002 г., ВАС, V о.; реш. № 11347 от 8 декември 2003 г. по адм. д. № 6483/2003 г., ВАС, V о.; реш. № 1745 от 26 февруари 2004 г. по адм. д. № 9591/2003 г., ВАС, V о.; реш. № 4093 от 5 май 2004 г. по адм. д. № 375/ 2004 г., ВАС, V о.; and реш. № 5890 от 22 юни 2004 г. по адм. д. № 1318/2004 г., ВАС, V о.).
35. In 2004 several persons brought a legal challenge to regulation 251(1)(6) (see paragraph 31 above). In a judgment of 8 February 2005, which came into force on 18 February 2005 following its publication in the State Gazette (реш. № 1219 от 8 февруари 2005 г. по адм. д. № 4773/2004 г., ВАС, петчл. св, обн., ДВ, бр. 16 от 18 февруари 2005 г.), a fivemember panel of the Supreme Administrative Court partly upheld the challenge and decided to strike out the wording “established by the [Ministry’s] Psychology Institute”. It noted, inter alia, that the Institute was directly subordinate to the Minister, and that its assessments of a person’s mental fitness for work at the Ministry were not subject to any form of review. There was therefore no guarantee that in carrying out those assessments the Institute’s experts would not commit errors, abuse their powers or deprive those concerned of their rights. That was important because if the Institute’s experts assessed a member of staff to be mentally unfit for work at the Ministry, the Minister had no discretion and was bound to dismiss him or her. Although the member of staff concerned could seek judicial review of the Minister’s order, such a challenge would be futile because the assessment, which formed the basis of the Minister’s order, was not amenable to judicial scrutiny. The court acknowledged that the employment of the Ministry’s staff touched upon national security. Nonetheless, it went on to hold that considerations relating to national security had to yield to a person’s right under Article 120 of the Constitution (see paragraph 28 above) to judicial review of all administrative decisions affecting his or her rights. The court said that the assessment of a person’s mental fitness for work at the Ministry of Internal Affairs should be amenable to “the same control for lawfulness, [namely] by several independent experts and by the court, as in the case of assessing health conditions [for the purpose of granting disability benefits]”. Therefore, in as much as it provided that the Ministry’s Psychology Institute was the only body authorised to assess mental fitness for work at the Ministry, regulation 251(1)(6) ran counter to section 2 of the 1997 Act (see paragraph 29 above) and the Health Act 2004. It was in addition contrary to the purpose of the law.
36. Following the delivery of that judgment, a panel of the Supreme Administrative Court held that, as a result of the partial strikedown of regulation 251(1)(6), the Institute’s assessments could, even if predating the strike-down, be subjected to judicial scrutiny in proceedings for judicial review of a dismissal order (see реш. № 3483 от 18 април 2005 г. по адм. д. № 9378/2004 г., ВАС, V о.).
37. However, other panels of the court abided by the old caselaw, holding that the lawfulness of dismissals which preceded the entry into force of the judgment of 8 February 2005 was to be judged by reference to the wording of regulation 251(1)(6) before its partial strikedown because the strikedown did not have retroactive effect (see реш. № 30 от 18 юли 2005 г. по адм. д. № С-27/2005 г., ВАС, петчл. св; реш. № 3949 от 12 април 2006 г. по адм. д. № 9213/2005 г., ВАС, VI о.; реш. № 401 от 10 януари 2006 г. по адм. д. № 5420/2005 г., ВАС, V о.; реш. № 4967 от 11 май 2006 г. по адм. д. № 7006/2005 г., ВАС, VI о.; № Я9 от 11 януари 2007 г. по адм. д. № 3С310/2006 г., ВАС, V о.; and № Я23 от 7 февруари 2007 г. по адм. д. № 5С312/2006 г., ВАС, петчл. св). In one judgment a panel stated that the effect of that judgment had been to make it possible to challenge the Institute’s psychological assessment in cases where the dismissal had taken place after the judgment (see реш. № 6251 от 9 юни 2006 г. по адм. д. № 961/2006 г., ВАС, V о.).
38. A panel of the court also held that the order that a member of staff should submit to a psychological assessment was merely a preparatory act and was not itself amenable to judicial review (see реш. № 7102 от 27 юни 2006 г. по адм. д. № 11119/2005 г., ВАС, V о.).
39. In a number of judgments given between May 2005 and 2008 panels of the court found that the psychological assessment procedure had been used to circumvent the rules governing disciplinary liability, and on that basis quashed the dismissal orders (see реш. № 4919 от 30 май 2005 г. по адм. д. № 10069/2004 г., ВАС, V о.; № 5385 от 10 юни 2005 г. по адм. д. № 8856/2004 г., ВАС, V о.; № 7449 от 27 юли 2005 г. по адм. д. № 6496/2004 г., ВАС, V о.; № 7450 от 27 юли 2005 г. по адм. д. № 11291/2004 г., ВАС, V о.; реш. № 10324 от 23 ноември 2005 г. по адм. д. № 9377/2004 г., ВАС, V о.; реш. № 1401 от 7 февруари 2006 г. по адм. д. № 6239/2005 г., ВАС, VI о.; реш. № 5215 от 16 май 2006 г. по адм. д. № 10715/2005 г., ВАС, V о.; реш. № 5216 от 16 май 2006 г. по адм. д. № 10717/2005 г., ВАС, V о.; реш. № 6787 от 21 юни 2006 г. по адм. д. № 11228/2005 г., ВАС, V о.; реш. № 7410 от 4 юли 2006 г. по адм. д. № 2367/2006 г., ВАС, V о.; реш. № 7449 от 5 юли 2006 г. по адм. д. № 12068/2005 г., ВАС, V о.; and реш. № 7505 от 5 юли 2006 г. по адм. д. № 10746/2005 г., ВАС, V о.; and реш. № 2819 от 12 март 2008 г. по адм. д. № 8881/2007 г., ВАС, III о.). In some of those cases the panels also held that, as far as it provided that the psychological assessment could determine whether the member of staff had abused his or her position for financial gain, Instruction no. I37 (see paragraph 32 above) ran counter to the Act: mental fitness for work was not to be confused with the commission of disciplinary offences (see реш. № 7724 от 11 юли 2006 г. по адм. д. № 3038/2006 г., ВАС, V о., and реш. № 7726 от 11 юли 2006 г. по адм. д. № 772/2006 г., ВАС, V о.).
40. Section 245(1)(3) of the Ministry of Internal Affairs Act 2006 (“the 2006 Act”), which superseded the 1997 Act in May 2006, provides that a civil servant employed by the Ministry must be dismissed on health grounds if he or she cannot perform his or her duties as a result of a health condition which has led to a permanent disability or as a result of medical contraindications.
41. Section 245(3) (until the end of 2010 section 245(2)) of the 2006 Act provides that the circumstances under section 245(1)(3) are to be determined by a Central Medical Expert Commission, whose assessment may be challenged before the Sofia City Administrative Court. Regulation 259(1) of the Act’s implementing regulations, adopted in June 2006, specifies that that Commission is attached to the Medical Institute of the Ministry of Internal Affairs.
42. When dealing with challenges to dismissal orders issued by reference to section 245(1)(3), some panels of the Supreme Administrative Court have stood by the position that the assessment whether a person is fit for work at the Ministry of Internal Affairs was not amenable to judicial scrutiny in proceedings directed against the dismissal order (see реш. № 7170 от 16 юни 2008 г. по адм. д. № 12426/2007 г., ВАС, III о.; реш. № 11138 от 27 октомври 2008 г. по адм. д. № 5095/2008 г., ВАС, III о.; and реш. № 2289 от 19 февруари 2009 г. по адм. д. № 15361/2008 г., ВАС, петчл. св). However, another panel examined the validity of such an assessment by reference to the conclusions of medical experts appointed in the course of the judicial review proceedings (see реш. № 8940 от 6 юли 2009 г. по адм. д. № 5836/2009 г., ВАС, петчл. св).
43. The administrative courts have on several occasions examined direct challenges to assessments of the abovementioned Central Medical Expert Commission. In doing so, they have sought the assistance of medical experts, and have taken into account the opinions of those experts (see реш. № 8753 от 1 юли 2009 г. по адм. д. № 5224/2009 г., ВАС, VІ о.; реш. № 3468 от 22 юни 2012 г. по адм. д. № 7227/2011 г., АССГ; and реш. № 4214 от 19 юли 2012 г. по адм. д. № 3664/2012 г., АССГ).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57512
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 1978
DOCNAME: CASE OF KÖNIG v. GERMANY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Just satisfaction reserved
TEXT: 15. The applicant, a German national born in 1918, had taken up practice as an ear, nose and throat specialist in 1949. In 1960, he opened at Bad Homburg (Hessen) in the Federal Republic of Germany a clinic of which he was the owner; he was the only medical practitioner working at the clinic which he ran and managed himself and where he performed, in particular, plastic surgery.
16. On 16 October 1962, proceedings against Dr. König for unprofessional conduct were instituted by the Regional Medical Society (Landesärztekammer) before the Tribunal for the Medical Profession (Berufsgericht für Heilberufe) attached to the Frankfurt Administrative Court (Verwaltungsgericht) and he was declared unfit to practise on 9 July 1964. The Regional Tribunal for the Medical Profession (Landesberufsgericht für Heilberufe) attached to the Hessenadministrative Court of Appeal (Verwaltungsgerichtshof) rejected Dr. König's appeal on 14 October 1970.
The accusations against the applicant upheld by the Regional Tribunal including the following: having offered a beauty specialist 20 % of his fees and one of his patients DM 100 for each client they introduced to him; having persuaded a patient to have treatment not covered by social security by assurances that he would in that case be able to use more effective methods; having refused to make out for one of his clients an account corresponding to the fee actually paid; having, as an ear, nose and throat specialist, performed an operation not falling within the field in which he specialised; having had a beauty specialist assist him during operations; having widely-publicised his practice in the daily and weekly press; having used on his name-plates, notepaper and prescription forms wording contrary to the rules of the medical profession.
17. In 1967, the applicant had his authorisation to run his clinic withdrawn and then, in 1971, his authorisation to practise. Criminal proceedings were taken against him in 1972 for, inter alia, the illegal practice of medicine.
Actions brought by Dr. König to challenge both of these withdrawals have been in progress before the competent administrative courts since November 1967 and October 1971, respectively.
18. The applicant complains of the length of the proceedings taken by him against the withdrawals of the authorisations; he makes no complaint about either the disciplinary proceedings before the professional tribunals or the criminal proceedings.
19. 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 particular, in the Federal Medical Practitioners' Act (Bundesärzteordnung - hereinafter referred to as "the Federal Act") in the version of 4 February 1970 as last amended on 2 March 1974 and 26 March 1975, the Regulations of 28 October 1970 on the grant of the authorisation to practise medicine (Approbationsordnung für Ärzte - hereinafter referred to as "the Regulations") and the Hessen Act on the Professional Bodies and Tribunals for Medical Practitioners, Dentists, Veterinary Surgeons and Pharmacists (Gesetz über die Berufsvertretungen und über die Berufsgerichtbarkeit der Ärzte, Zahnärzte, Tierärzte and Apotheker - hereinafter referred to as "the Hessen Act") in the version of 18 April 1966.
20. According to paragraph 1 of Article 1 of the Federal Act, the medical practitioner shall have the care of the health of each individual and of the community as a whole. Under paragraph 2, he exercises a liberal profession and not a trade or business.
In order to be able to practise on a permanent basis, an authorisation issued by the appropriate services of the Länder is required. (Articles 2 para. 1 and 12 of the Federal Act and Article 35 of the Regulations). This authorisation is granted on request if the person concerned:
"1. is German ... or is a stateless alien ...,
2. has not been guilty of behaviour showing that he is unfit or unreliable to exercise the profession ...,
3. is not incapable of, or unsuited for, the exercise of the ... profession on account of an infirmity, of some weakness in his mental or physical faculties, or of an addiction (Sucht),
4. after studying medicine for a minimum of six years, including a minimum of eight months' and maximum of twelve months' practical training in a hospital, has passed the medical examination in a place where this Act is applicable.
..." (Article 3 para. 1 of the Federal Act).
If the application is granted, the person concerned receives a document (Approbationsurkunde) certifying that the statutory conditions are satisfied and adding:
"With effect from today's date, he (she) is granted authorisation to exercise the medical profession .... Such grant authorises the doctor to practise medicine" (Article 36 of the Regulations and Appendix 21 thereto).
If, on the other hand, the authorisation has to be refused for nonfulfilment of one of the conditions, the applicant or his representative must first be given a hearing (Article 3 para. 4 of the Federal Act.)
An authorisation that has been issued must be withdrawn if one of those conditions either was not satisfied at the time of the grant or ceases to be met afterwards (Article 5 of the Federal Act).
21. Anyone wishing to run a clinic must have an authorisation pursuant to the Trade and Business Act (Gewerbeordnung) and is entitled thereto if he fulfils the conditions stipulated by Article 30 para. 1 of the Act (see paragraph 27 below).
Since the management of a clinic is classified as a trade or business, the person running it does not have to be a doctor himself. However, he is required to take all necessary staffing and organisational measures to ensure the treatment of patients in his institution. He must, therefore, employ one or more doctors responsible for the care of his clients.
The authorisation is withdrawn if it transpires either that the documents supporting the application were incorrect or that the requisite conditions were never, or have ceased to be, satisfied (Article 53 of the same Act; paragraph 27 below).
22. It is not disputed that, according to German law, the right to be authorised to practise medicine and the right to be authorised to run a private clinic are rights conferred on the individual by public law and protected by Article 12 of the Basic Law which guarantees freedom to exercise a profession. Again, exercise of the medical profession, unlike the running of a private clinic, is not considered in the Federal Republic to be a trade or business (see paragraph 20 above); although it also has the purpose of providing an income, its primary aim is disinterested, namely, rendering assistance to mankind.
Medical treatment is a matter for a private-law contract between doctor and patient. Such a contract serves to guarantee the free choice of a medical adviser, maintain a relationship of trust between him and his patient and uphold professional secrecy. However, the contract does not establish a well-defined set of rights and obligations since it imposes on the doctor a duty to provide basically unlimited services to anyone seeking treatment. Moreover, the rules on the medical profession forbid its members to advertise and even regulate in detail the size and content of their name-plates.
Again, medical practitioners cannot fix their fees at will but must comply with the Regulations even when not practising as national health doctors. Minimum and maximum fees for medical services are specified by Federal Government decrees, taking into account the legitimate interests of practitioners and of the persons or organisations having to pay them (Article 11 of the Federal Act).
Those affiliated to the social security health insurance funds – about 80 % of the population - are entitled to medical treatment according to the terms of the legislation and agreements in force. The majority of medical practitioners are approved national health doctors and obliged to treat members of the insurance funds. The Federal Constitutional Court (Bundesverfassungsgericht) has held that such practitioners are not administering a public service but fulfilling a public-law duty and, by their enrolment, are integrated within a system of public law. (Collected Decisions of the Constitutional Court, Vol. 11, pp 30 et seq.).
23. Medical practitioners carry out their duties under the control, inter alia, of their societies and of the professional tribunals, these institutions being governed by Länder Law.
24. Articles 1 and 2 para. 1 of the Hessen Act provide that regional medical societies are public-law associations to which all doctors practising in the Land belong. Practitioners who fail to register with the competent society or to fulfil their other obligations under its statutes may be fined (Article 7 of the Hessen Act.)
Article 4 para. 1 of the Hessen Act gives the following definition of each society's functions:
"1. supervision of the discharge of (its) members' professional duties ...,
2. promotion of the further training of society members,
3. promotion of harmonious relations among society members and settlement of any disputes, arising in the exercise of the profession, between members or between them and third persons, without prejudice to the jurisdiction of other authorities,
4. assisting the official health service in the performance of its functions, ..."
The authorities and the societies must assist each other in the fulfilment of their respective functions (Article 5 of the Hessen Act).
The societies are under State supervision which extends to observance of the laws and statutes. The competent Minister may quash any decision contravening these texts (Article 16 of the Hessen Act) and may at any time request information from the societies concerning their affairs (Article 17 para. 1).
25. If the council of the society suspects a practitioner of unprofessional conduct, it refers the matter to the Tribunal for the Medical Profession (Articles 18 and 29 para. 3 of the Hessen Act). Under Article 20 para. 1, the decision at first instance is given by that Tribunal which is attached to the Administrative Court for the locality and has three members, namely the President, or his representative, and two assessors belonging to the defendant's professional group (Article 21 para. 1).
An appeal against the Tribunal's decision may be made to the Regional Tribunal for the Medical Profession attached to the Hessen Administrative Court of Appeal (Articles 41 and 20 para. 2); the appellate tribunal is composed of five members, namely the President, or his representative, two other judges of the Administrative Court of Appeal and two assessors belonging to the defendant's professional group (Article 21 para. 2).
The professional tribunals may impose the following penalties, the second, third and fourth of which may be combined: warning, reprimand, temporary suspension of the right to vote in society proceedings, fine up to DM 10,000 and finding that the individual is unfit to exercise the profession (Article 19 paras. 1 and 3).
The authorisation to practise is not automatically revoked as the result of the last-mentioned finding. Although its ultimate purpose is the individual's exclusion from the profession, it binds neither the Regierungspräsident, who alone has power to withdraw the authorisation, nor any courts which may be called upon to examine the lawfulness of such a withdrawal.
26. Decisions by the Regierungspräsident withdrawing either an authorisation to practise or an authorisation to run a private clinic may be challenged before the administrative courts. However, before the person concerned can bring the matter before the courts, he must first have filed - unsuccessfully - an objection (Widerspruch) with the Regierungspräsident.
27. On 12 April 1967, at the request of the Regional Medical Society, the Regierungspräsident in Wiesbaden withdrew the applicant's authorisation to run his clinic, claiming that he could not be relied on to conduct the institution properly and lacked the diligence and knowledge required for its technical and administrative management. The Regierungspräsident adverted to an inspection of the clinic which had revealed, in November 1965, numerous irregularities: out of thirty-four medical records, eighteen were not maintained correctly; the training of the staff was insufficient for the work entrusted to them; the equipment in the treatment room left something to be desired; the instruments, some of which were beginning to rust, were in part badly kept; the X-ray machinery lacked safety devices. Inspectors were said to have found in January 1967 that, amongst other things, the operating theatre and its equipment had not been cleaned. The Regierungspräsident relied also on evidence given by several people to the effect that, between 1962 and October 1966, the clinic had in fact been managed by a young employee who was aged eighteen in 1962 and was unqualified. She supervised the staff and took care of the patients and had allegedly confirmed that dog-food was kept in the refrigerator at the clinic and that the applicant allowed men to be present in the rooms outside visiting hours. According to her, Dr. König also made advances to her and one of her colleagues on several occasions.
The decision of the Regierungspräsident was based on the following provisions of the Trade and Business Act:
"A person running a private clinic, maternity home or mental hospital requires an authorisation from the higher administrative authority. The authorisation may be refused only:
(a) if the facts show that the said person cannot be relied on properly to conduct and manage the institution;
..."
"The licences ... mentioned in [Article] 30 ... may be withdrawn ... only:
1. ...
2. if it subsequently appears that the person running the institution does not possess the qualifications required for the grant of the licence ... or that the premises or technical equipment of the institution no longer satisfy the requirements for the grant of the authorisation.
..."
28. On 13 July 1967, the applicant filed an objection which was rejected by the Regierungspräsident on 6 October. Dr. König then appealed, on 9 November, to the Frankfurt Administrative Court, the case being assigned on the following day of its 4th Chamber which is competent to hear disputes relating to the law on trade and business activities.
These appeals had the effect of suspending enforcement of the decision complained of.
29. As early as 10 November, the court asked the Regierungspräsident for his observations; it received them on 8 February 1968, after extending the time granted and sending a reminder.
The Regierungspräsident was requested on 27 March to supply further information and he submitted a written pleading on 30 May. He indicated therein that the applicant was to undergo a psychiatric examination whose results would be forwarded to the court later. The court asked the Regierungspräsident about this on 10 June, 25 July and 9 August; he supplemented his earlier observations but told the court on 10 January 1969 that the applicant had not agreed to be so examined.
On 16 January, the court asked the Regierungspräsident to clarify a point in his pleading; this clarification was received by the court on 2 April.
30. In the meantime and until January 1969, the court had tried to obtain from, notably, the Regierungspräsident (10 June 1968) and the competent local authorities (10 October), the addresses of several persons who might be called as witnesses.
The court also endeavoured, as from 8 January 1969, to procure files on the applicant, including those of the professional tribunals (see paragraph 16 above).
On 26 August 1969, the court decided to hear sixteen witnesses at sittings fixed for 25 and 26 November. For this purpose, it tried, for example on 11 and 18 September, to obtain the addresses of witnesses and requested the production of other files concerning Dr. König.
On 27 November, the court fixed 2 December as the date for the oral hearing (mündliche Verhandlung) and for the continuation of the taking of evidence from the witnesses, including a certain Mr. Xymenes who had made serious accusations against Dr. König before the Regional Medical Society.
The court sat on 2, 8 and 12 December. It imposed fines (Ordnungsstrafen) of DM 100 and DM 500 on Mr. Xymenes for failing to appear.
On 3 February 1970, the court decided not to hear the appeals (Beschwerden) made by Mr. Xymenes against these penalties on 30 December 1969 and 2 January 1970 and to transmit the file to the Hessen Administrative Court of Appeal. On 17 February, the latter court invited those concerned to present their observations and it set aside the two fines on 9 and 10 March.
31. On 17 April 1970, the file was returned to the Administrative Court which, on 14 May, informed the parties of the state of the proceedings. It asked them to indicate as soon as possible what evidence they proposed to put forward, pointing out that several persons had offered to make statements on the medical treatment given to them by the applicant. The court also stated that, as far as it was concerned, the hearings could be resumed at the end of June or the beginning of July since the lay judges would be available then.
On 29 May, Dr. König indicated that he would abstain from nominating further witnesses if the Regierungspräsident did likewise. However, on 8 June, the latter named a certain number of additional witnesses and, on 6 July, he filed with the court a pleading dealing with the evidence taken so far.
This pleading was sent by the court on 13 July to the applicant for his comments; on 24 September, he requested in writing that seventy-six witnesses be heard should the court decide to hear those mentioned by the Regierungspräsident.
There followed a further exchange of pleadings.
32. On 25 February 1971, the Regierungspräsident informed the court that Mr. Xymenes was detained in prison at Constance and could accordingly be served with a summons to appear.
After advising the applicant, the court wrote on 14 April to the competent authorities in Constance to enquire whether Mr. Xymenes was being held in the prison and, if so, for how long. The prison replied on 27 April that the witness had been released.
33. On 29 April 1971, the judge acting as rapporteur directed that the file be sent back to the President of the Chamber to enable him to fix the date of the hearing, but this instruction was not carried out, probably due to a mistake on the part of the registry.
On 24 May, Mr. Schmidt-Leichner of Frankfurt announced that he was no longer acting as Dr. König's lawyer.
34. The applicant, who on 26 August 1971 had asked the court to fix the date for the hearing without delay, was told on 2 September that the file would be submitted to the President of the Chamber immediately he returned from holiday. An order of the court set 5 September as the date for such submission.
On 20 October, Messrs. Bossi, Breme and Ufer of Munich told the court that they were now acting for Dr. König.
Following receipt of a letter from the Frankfurt Regional Employment Tribunal (Landesarbeitsgericht), the file was returned to the judge acting as rapporteur on 21 October.
35. On 29 November 1971 and 12 January 1972, the court attempted yet again, but without success, to contact Mr. Xymenes to discover whether he would be able to give evidence in January/February or in February/March 1972.
On 21 February, the court fixed 28 March as the date for a hearing to which it summoned Mr. Xymenes. He did not appear and on 29 March was fined DM 500 by the court which also ordered him to attend a further hearing due to be held on 31 May.
Relying on a medical certificate, Mr. Xymenes on 8 April lodged an objection against this penalty but the court dismissed the objection and sent the file to the Hessen Administrative Court of Appeal. On 26 April, the latter court asked the witness's doctor to supply further details about the said certificate: it received them on 2 May and set the fine aside on 18 May.
The file was returned on 29 May to the Administrative Court which on the same day cancelled the hearing fixed for 31 May, on the ground that the presence of Mr. Xymenes could not be secured.
Pursuant to an order of 7 June 1972, there was a further hearing on 11 July. Once again, Mr. Xymenes did not appear.
On 13 July, the Court fined him DM 500. On 10 August, it directed that the taking of evidence would continue on 19 September. On 22 August, it issued a subpoena against Mr. Xymenes who gave evidence on 19 September.
36. At the conclusion of this last sitting, the court granted the parties the faculty of submitting, by 15 October, their written observations on the result of the examination of witnesses. Dr. König took advantage of this on 13 October.
On 14 November, other lawyers informed the court that they had been instructed by the applicant and requested it to await their written pleading. This document, which arrived on 12 February 1973, commented on the evidence already obtained, repeated the earlier applications for evidence to be taken and made new applications therefore. On the same day, Mr. Demme announced that he was Dr. König's new lawyer. The court transmitted the pleading to the Regierungspräsident on 22 February.
In the meantime, on 30 January, the court had requested Dr. König to produce his records on two of his former patients. Having received only photocopies of the documents in question, the court renewed its request on 22 February and tried to trace a further witness.
37. On 30 March 1973, the court supplemented its order of 26 August 1969 (see paragraph 30 above) and fixed 17 April as the date for the continuation of the taking of evidence and for the oral hearing. At the close of its sitting on 17 April, it indicated that it would give a decision on 8 May.
However, after trying to obtain witnesses' addresses and taking cognisance, on 18 April, of another written pleading from the applicant, the court on 2 May adjourned sine die the date for delivery of its decision; at the same time and also subsequently, it requested Dr. König to supply further information, which was received on 14 May and 9 July. Between these dates, the court also had researches made for the addresses of several witnesses.
The parties supplemented their pleadings on 26 and 30 July 1973.
38. On 16 August 1973, the court decided that there should be a second additional enquiry and, in particular, the hearing of five new witnesses. On the next day, it sent the file to the Bad Kissingen District Court (Amtsgericht) for it to hear one of those witnesses; on 20 August, it directed that the three others should be heard on 21 September but, on 22 August, postponed this to 5 October at Dr. König's request. When the file came back from Bad Kissingen, the court on 19 September asked the Altena District Court to hear another witness.
39. Previously, on 22 August, the applicant had filed with the Hessen Minister of Justice a disciplinary complaint (Dienstaufsichtsbeschwerde) in which he also declared that he challenged "the Frankfurt Administrative Court". For this reason, on 3 October, the court cancelled the hearing due to take place two days later.
On 4 October, the 3rd Chamber of the Administrative Court, which appeared to have jurisdiction in the matter, asked Dr. König to specify which of the judges he was challenging, pointing out that it was not possible to challenge all the members of a Chamber.
The applicant replied on 19 October that his claim was limited to the judge of the 4th Chamber acting as rapporteur and that he objected to certain wording used by the latter in the letters rogatory sent on 19 September to the Altena District Court.
On the same day, Mr. Schilling, acting on behalf of Dr. König, complained about the length of the proceedings to the Federal Constitutional Court. The Administrative Court was invited on 31 October to present its observations and it did so on 9 November, transmitting the file to the Constitutional Court on 15 November. The latter, by a decision of 28 November, refused to hear the complaint on the ground that it did not offer sufficient prospects of success.
Following the return of the file on 10 December, the Administrative Court on 8 January 1974 upheld the challenge against the judge acting as rapporteur.
40. The file was then transmitted by the Administrative Court to the Hessen Minister of Justice to enable him to give a decision on the disciplinary complaint; he received the file on 14 January 1974 and returned it on 8 March. On 22 March, the court sent the file to the Hagen public prosecutor's department (Staatsanwaltschaft) as requested by it and by the President of the Regional Court (Landgericht) of the same town, who needed it in order to examine another disciplinary complaint by Dr. König.
41. On 26 April 1974, the applicant asked the Administrative Court not to hear a witness who it was contemplated should be summoned. This request was repeated on 28 May but rejected on 6 June by the court which decided to hold a hearing on 30 July.
Only some of the witnesses appeared on that day. One was heard at home on 14 August and another gave evidence in writing.
On 14 August, the file was sent to the Hessen Minister of Justice for the purposes of the proceedings instituted by Dr. König on 3 July 1973 before the Commission. On this occasion, the President of the 4th Chamber made known his observations on the outcome of the court's enquiry; he was of the opinion that the partly contradictory statements of the witnesses did not allow a firm conclusion to be drawn on the applicant's activities as manager of the clinic; accordingly, the question arose whether his conduct as a medical practitioner also had to be taken into account; however, it was not for the 4th Chamber to rule on the complaints against Dr. König in this last-mentioned capacity since they were the object of proceedings pending before the 2nd Chamber.
42. On 25 August, the applicant submitted observations on the statements made by one witness and applied for seven further witnesses to be heard. A copy of this pleading, which the court had requested from him on 28 August, was sent on 5 September to the Regierungspräsident who replied on 7 October.
The Hessen Minister of Justice returned the file to the Administrative Court on 28 October.
43. The court had previously been advised that in July the applicant had entrusted his case to another lawyer, Mr. Unruh. The latter returned the brief on 26 November and his successor Mr. Heldmann, who had given notice on 18 October 1974 that he was acting for Dr. König, did likewise on 21 February 1975.
44. On 10 February 1975, the President of the 4th Chamber had a meeting with the applicant who stated that he had let the clinic premises for use as an old people's home and would re-open the clinic - in association with a surgeon - only after being authorised to practise again. Furthermore, he agreed that priority be given to the proceedings, pending before the 2nd Chamber, concerning the exercise by him of his profession.
45. The file was sent on 5 May to the Hessen Minister of Justice for the purpose of the Commission proceedings. It was returned to the court on 26 June and then communicated on 4 July to Dr. König's new lawyer, Mr. Cartus of Karlsruhe, who on 16 April had indicated that he had been instructed. The Court had allowed him two weeks to consult the file and, on 11 July, extended this period to 8 August.
However, on 18 July, Dr. König informed the court that he had withdrawn Mr. Cartus' instructions and requested that he be asked to return the file which Dr. König wished to study himself. The court communicated on 21 July with the lawyer who returned the file on 29 July.
On 1, 4 and 11 August, the applicant and his new lawyer, Mr. Mattern, who acted for him from 22 July to 14 August, requested the court to send them certain documents, including verbatim records of evidence, two of which were despatched to them on 18 August.
From 11 to 23 September, the file was with Mr. Unruh who, since 11 September, had once again been entrusted with Dr. König's case.
46. On 6 November 1975, there was added to the file a second challenge lodged by the applicant with the Hessen Minister of Justice on 10 October (see also paragraph 67 below).
On 2 December, the President of the Chamber wrote to Dr. König to enquire whether his intention was to challenge the members of the Chamber on the ground of bias and, if so, which members.
As regards the duration of the proceedings, the President remarked:
"I wish to point out that we have repeatedly talked about the expediency of continuing the proceedings concerning the authorisation to run a clinic and pending before the 4th Chamber. On those occasions you agreed with me that it was necessary first of all to await the conclusion of the proceedings relative to the authorisation to practise medicine because they had to be regarded as having priority. You also mentioned that you would not re-open your clinic before that date although in law you would be entitled to do so. Should you have changed your mind, please let me know."
Dr. König's lawyer replied on 8 December that the claim related primarily to the President of the 2nd Chamber and the manner in which the last hearing before that Chamber had been conducted. He requested the court not to decide, for the time being, whether his client was challenging the 4th Chamber.
On the subject of the duration of the proceedings, the lawyer declared:
"The question of the conclusion of the proceedings concerning the authorisation to practise medicine has at present priority because in those proceedings immediate enforcement of the administrative decision has been ordered. It is known that there is no order for immediate enforcement of the decision to withdraw the authorisation to run the clinic; consequently, as regards the last two sentences in your letter of 2 December 1975, there is at present no need for the 4th Chamber of the Frankfurt-on-Main Administrative Court to give an early decision."
The applicant withdrew Mr. Unruh's instructions on 25 April 1976.
47. The proceedings before the 4th Chamber accordingly remained suspended and were resumed only after the 2nd Chamber had delivered judgment on 9 June 1976.
Hearings, which originally had been arranged for 17 May 1977 and were then postponed at the applicant's request, took place in June.
On 22 June 1977, the 4th Chamber dismissed the applicant's appeal against the withdrawal of the authorisation to run his clinic. Its judgment was based on the evidence taken during the hearing of seventeen witnesses between November 1969 and August 1974.
Dr. König appealed to the Hessen Administrative Court of Appeal where the case is still pending before the Chamber (Senat) which, on 2 May 1978, ruled on his appeal against the judgment of the 2nd Chamber of the Administrative Court (see paragraph 69 below).
Another lawyer, Mr. Hofferbert of Frankfurt, is representing the applicant before the Administrative Court of Appeal.
48. According to statistics supplied by the Government, purely by way of indication, concerning the action before the 4th Chamber, 1,149 days of the proceedings are attributable to measures taken by the court, 1,725 to measures taken by the applicant and his lawyers and 555 to measures taken by third parties, including the defendant administrative authorities, the professional bodies and the witnesses.
49. On 12 May 1971, the Regierungspräsident in Darmstadt withdrew the applicant's authorisation to practise medicine and directed that this decision should have immediate effect (Article 80 para. 2, sub-paragraph no. 4, of the Code of Administrative Procedure - Verwaltungsgerichtsordnung). On the basis of the findings made by the professional tribunals in 1964 and 1970 (see paragraph 16 above), the Regierungspräsident considered that Dr. König had behaved in a manner which disclosed his professional unfitness and his failure to meet medical ethical standards. The Regierungspräsident was acting in pursuance of the following provisions of the Federal Act:
"The authorisation to practise medicine shall be withdrawn if one of the requirements of Article 3 para. 1, first sentence, sub-paragraph no. 2, ceases to be satisfied."
"The authorisation to practise medicine shall be granted on request provided the applicant:
1. ...
2. has not been guilty of behaviour showing that he is unfit or unreliable to exercise the profession ..."
50. On 1 June 1971, at the request of the applicant and in order to allow him to refer his patients to other practitioners, the Frankfurt Administrative Court restored the suspensive effect of the objection against the decision of the Regierungspräsident, but only until 30 June. The appeal lodged by Dr. König against this ruling was dismissed by the Hessen Administrative Court of Appeal on 6 July.
51. After the Regierungspräsident had rejected on 17 September 1971 the objection filed by the applicant on 18 May against the withdrawal decision, the latter appealed to the Darmstadt Administrative Court on 20 October 1971. For reasons of jurisdiction, this court on 25 October referred the case to the Frankfurt Administrative Court where it was assigned to the 2nd Chamber which is responsible, inter alia, for questions relating to the law on the medical profession.
52. On 2 November 1971, the Frankfurt Administrative Court notified the Regierungspräsident of the appeal, requesting his comments and production of the files kept by his services.
The written pleading of the Regierungspräsident was filed on 24 January 1972 and communicated to the applicant's lawyer two days later. After being asked by the court on 24 April whether he intended to submit a reply, the lawyer made an application for the time-limit to be extended until the end of May.
The reply in question was filed on 26 June and sent to the Regierungspräsident for comment. Following the receipt on 11 July of a voluminous supplementary pleading from the applicant's lawyer, the Regierungspräsident on 27 July sought an extension until mid-October of the time-limit expiring on 30 July; on 11 August, the court gave leave for the expiry date to be deferred, but only until 15 September.
53. On 5 September 1972, the court ordered that the Regional Medical Society be joined (Beiladung) to the proceedings. On 14 September 1972, after requesting the parties and the Regional Medical Society to furnish certain explanations and after calling for the production of certain criminal files, the court proposed a friendly settlement of the case. The suggestion was that Dr. König would cease to practise as a self-employed physician and to run his clinic, whilst the Regierungspräsident would restore his authorisation to exercise his profession subject to certain conditions. The applicant rejected this proposal on 12 October. The court advised the Regierungspräsident of this four days later, reminding him at the same time about the submission of his comments.
54. Those comments were received by the court on 16 January 1973; a written pleading from the Regional Medical Society was filed on 16 February.
Dr. König had changed lawyers on 12 February (see paragraph 36 above). His new adviser, Mr. Demme, inspected the court's file, returning it on 14 March; on 2 May, he also returned the files of the administrative authorities which the court had at his request sent to him on 20 March. On 7 May, he submitted a written pleading which the court communicated for comment to the Regierungspräsident and the Regional Medical Society.
55. On 5 May and 6 August 1973, the court asked the Frankfurt District Court and public prosecutor's department for information as to the state of criminal proceedings instituted against the applicant on 27 July 1972 (see paragraph 71 below).
On 9 August, the public prosecutor's department advised the court that, following a hearing held in the meantime, those proceedings had been stayed because further witnesses and experts were to be summoned.
56. On 14 September 1973, the President of the Administrative Court of Appeal sent a copy of the disciplinary complaint of 22 August to the 2nd Chamber which Dr. König had mentioned when challenging "the Frankfurt Administrative Court" (see paragraph 39 above).
The file was passed to the 3rd Chamber for it to rule on the challenge. Together with the file were communicated declarations made by the members of the 2nd Chamber; in particular, the judge acting as rapporteur indicated that the 2nd Chamber wished to await the result of the criminal proceedings in view of their importance for the question at issue before it.
On 8 October, the 3rd Chamber rejected the challenge on the ground that the applicant had failed to show prima facie the existence of justificatory reasons. As soon as this decision had become final, the file was returned, on 26 October, to the 2nd Chamber.
57. The court had decided on 25 September 1973 to suspend its proceedings to await the outcome of the criminal proceedings instituted against the applicant (see paragraph 71 below) as it considered that the latter proceedings were of importance for the action pending before it (Article 94 of the Code of Administrative Procedure).
58. On 19 October 1973, Dr. König had complained to the Constitutional Court of the length of the proceedings pending before the 2nd and 4th Chambers (see paragraph 39 above). Having been requested by the Constitutional Court on 31 October to submit his observations, the President of the 2nd Chamber replied on 6 November that the Chamber proposed to defer its judgment until the close of the criminal proceedings.
The Constitutional Court decided on 28 November not to allow the appeal. It observed, inter alia, that, in refusing to fix a date for the hearing as long as it did not know the result of the criminal proceedings, the 2nd Chamber had - up to that time – properly exercised its discretion in the matter. The nine volumes of the case file had been forwarded to the Constitutional Court on 19 November; they were sent back to the Administrative Court on 10 December.
59. On 16 February 1974, the Frankfurt District Court informed the 2nd Chamber that, in the criminal proceedings, detailed expert opinions still had to be obtained and that the trial would not take place before the second half of the year.
On 26 March, the 2nd Chamber asked the District Court to confirm that the applicant remained charged, inter alia, with having continued to practise notwithstanding the withdrawal of the necessary authorisation.
60. On a further application by Dr. König, the Constitutional Court on 11 April 1974 asked the 2nd Chamber for a supplementary report on the state of the proceedings and, in view of their duration, for an indication whether he could not be granted some concessions as regards the immediate enforcement of the withdrawal.
The President of the 2nd Chamber replied on the same day. She emphasised that any modification of the decision not to stay such immediate enforcement would endanger the health of the applicant's patients if the accusations against him proved to be founded. The Chamber did not consider that it could take this risk. Furthermore, judicial experience in no way bore out the opinion that the accusation that Dr. König had continued to perform operations could be verified more swiftly by the Chamber than by the District Court, but with the same degree of reliability.
On 30 May, the Constitutional Court decided not to hear the complaint on the ground that it did not offer sufficient prospects of success. The Administrative Court received a copy of this decision on 6 June.
61. Previously, on 25 April 1974, the latter court had informed the applicant that it maintained its decision to await the outcome of the criminal proceedings.
On 8 May, the District Court had confirmed to the 2nd Chamber (see paragraph 59 above) that Dr. König remained charged with having continued to practise after the withdrawal of his authorisation; it had added that a decision within the next six months was hardly likely since the applicant had challenged one of the judges and extensive appellate proceedings were in progress.
62. On 11 July 1974, Dr. König, pleading the length of the proceedings, requested the Administrative Court to restore the suspensive effect of his appeal against the withdrawal decision.
However, the file was sent to the Hessen Minister of Justice who had asked for it on 29 July for the purposes of the Commission proceedings; it was returned to the court on 24 October after the Government's observations on admissibility had been filed in Strasbourg.
Between 11 July and 24 October, the applicant had changed his advisers twice (see paragraph 43 above); until 16 December the file was retained for consultation by Mr. Heldmann, the second of the lawyers so appointed.
63. On 3 January 1975, the 2nd Chamber rejected the request of 11 July 1974. Dr. König, who had withdrawn instructions from his lawyer (see paragraph 43 above), at once appealed in person to the Hessen Administrative Court of Appeal but it dismissed the application on 4 November. The court, relying on the statements made by witnesses during the proceedings before the 2nd Chamber, took the view that, if the applicant were authorised to practise, he might endanger any clients who consulted him. Dr. König had previously attacked the decision of the 2nd Chamber before the Federal Constitutional Court which, on account of non-exhaustion of remedies, had declined to hear his application.
64. After the return of the file to the Administrative Court on 26 June 1975, the President of the 2nd Chamber and the judge acting as rapporteur agreed on 30 June, in order to expedite matters, not to wait any longer for the result of the criminal proceedings or of the action before the Administrative Court of Appeal. They contemplated holding hearings on 3 September.
The judge acting as rapporteur made, also on 30 June, enquiries of the District Court about the state of those criminal proceedings.
On 10 July 1975, the Constitutional Court decided not to hear a further complaint filed on Dr. König's behalf by Mr. von Stackelberg and objecting, inter alia, to the dilatory nature of the proceedings. It considered, amongst other things, that the special features of the case, from both a factual and a legal point of view, and the applicant's unfitness to practise, which had been conclusively found by the Regional Tribunal for the Medical Profession, justified the 2nd Chamber's awaiting the decision in the criminal proceedings and maintaining the immediate effect of the withdrawal of the authorisation. The court added that, furthermore, nothing prevented Dr. König from seeking, principally on the ground of the length of the proceedings, restoration of the suspensive effect of the appeal against the said withdrawal.
65. On 14 July 1975, the 2nd Chamber decided that on 2 and 3 September there would be a sitting devoted to the hearing of evidence and of argument. The parties were informed of this decision two days later.
On 28 and 31 July, the Chamber had researches made for the addresses of some witnesses. On 14 August, it was advised that Mr Mattern, the lawyer instructed by Dr. König on 22 July (see paragraph 45 above), was no longer acting for him. Six days later, the applicant filed a pleading, the Regierungspräsident having submitted one on 14 August.
66. The hearing did take place on 2 and 3 September 1975. After hearing six witnesses, the court directed that there should be a further sitting on 12 November, but it cancelled this on 14 October as the file was with the Hessen Administrative Court of Appeal which had to rule on the appeal of 3 January (see paragraph 63 above).
67. Dr. König, in a letter of 10 October received on 13 October by the Hessen Ministry of Justice, had sought the transfer to another court of the actions pending before the 2nd and 4th Chambers whose judges, he alleged, could "no longer be described as impartial".
The letter was sent on 16 October by the Minister to the Frankfurt Administrative Court and was put before the 2nd and 4th Chambers on 6 November (see also paragraph 46 above).
On 13 November, the President of the 2nd Chamber wrote to the applicant to enquire whether a formal challenge was being made; the lawyer, Mr. Unruh, who from 11 September 1975 to 25 April 1976 once again acted for Dr. König (see paragraphs 45 and 46 above), replied on 6 December that his client was challenging the President herself. He also asked to be allowed to consult the file; this was held at his disposal at the registry until 13 January 1976 but he did not go to collect it there.
On the last-mentioned date, the file was sent to the Hessen Ministry of Justice for the purposes of the proceedings pending before the Commission. It came back on 17 February to the court which, on 5 March, rejected the challenge.
68. On 15 April 1976, the 2nd Chamber decided that it would hear further witnesses on 12 May.
On 28 April, it refused an adjournment requested on 24 April by Dr. König's lawyer and emphasised that his client had insisted on the urgency of a decision.
Having been told by the applicant on the following day that there would be hearings in the criminal case on 12 May, the Chamber agreed on 6 May to postpone its own sitting until 9 June.
On 1 June, the applicant sought a further adjournment, maintaining that on 9 June he had to prepare for the hearings which were to resume in the criminal court on the next day. The 2nd Chamber, having found that he had had sufficient time for preparation, refused the request on 9 June.
69. On 9 June 1976, after hearing witnesses, the court dismissed Dr. König's appeal against the withdrawal of his authorisation to practise medicine. Its judgment was based on the statements of eight persons heard by it in 1975, most of whom had already given evidence about the same facts before the 4th Chamber, and was communicated on 3 August to the applicant, whose lawyer lodged an appeal on 11 August.
On 13 August, the court sent the file to the Hessen Administrative Court of Appeal which, by judgment of 2 May 1978, dismissed the appeal; this judgment has not yet become final.
70. According to statistics supplied by the Government, purely by way of indication, concerning the action before the 2nd Chamber, 569 days of the proceedings are attributable to measures taken by the court, 841 to measures taken by the applicant and his lawyers and 311 to measures taken by third parties, including the defendant administrative authorities, the professional bodies and the witnesses.
71. The criminal proceedings against the applicant are not in issue but should be mentioned because of their effect on the action before the 2nd Chamber of the Frankfurt Administrative Court which had postponed its decision pending their outcome (see paragraphs 55-61 and 64 above).
The criminal proceedings originated in a complaint against Dr. König relative to the illegal practice of medicine, causing bodily harm and committing fraud, which the Regierungspräsident in Darmstadt had lodged on 27 July 1972 with the Frankfurt public prosecutor's department.
72. The applicant, who on 10 August 1972 had refused to be questioned by the police, was charged on 11 September before the Frankfurt District Court, sitting as a lay magistrates' court (Schöffengericht). The indictment (Anklageschrift) alleged that, between September 1971 and the beginning of June 1972, he had continued to practise despite the withdrawal of the requisite authorisation (continuing breach of the Federal Medical Practitioners' Act), that he had thereby perpetrated frauds (Article 263 of the Penal Code) and that he had caused, in one case, serious bodily harm (Articles 223 and 223 (a) of the Penal Code).
73. At the close of its sitting on 17 April 1973, the court ordered numerous enquiries. A psychiatrist and a psychologist gave their opinion on one of the alleged victims; he was the only alleged victim called by the public prosecutor's department as a witness and had intervened (Nebenkläger) in the proceedings on 13 November 1972 in order to claim damages.
74. On 14 February 1974, the court decided that, if by 20 April Dr. König had not himself submitted an expert opinion on the state of his mental health, he should be examined by a psychiatrist.
On 1 March, the applicant lodged an objection against this decision and that of 17 April 1973. On 14 March, he stated that he was challenging the President of the lay magistrates' court; after a judge had refused this plea on 6 May, both he and the President were challenged by Dr. König on 15 May.
On 26 May, the District Court dismissed the objection and the challenge and directed that the private expert opinion be submitted not later than 1 August.
75. Two days later, Dr. König repeated his objection of 1 March and at the same time lodged a disciplinary complaint against the President of the lay magistrates' court. The Frankfurt Regional Court dismissed the objection on 10 June 1974; the documents do not disclose the result of the disciplinary complaint.
76. On 29 June, Dr. König challenged the expert nominated by the court and proposed two others. He supplemented this application on 3 July and appealed to the Federal Constitutional Court against the decisions of 14 February and 26 May. On the next day, he requested the District Court to suspend enforcement of the first decision until the Constitutional Court had given its ruling. On 16 July, the District Court declined to do so and, nine days later, it received a copy of the Constitutional Court's decision rejecting the appeal of 3 July.
On 7 August, the court dismissed an application by Dr. König for a further psychiatric examination of the party claiming damages.
77. On 15 August 1974, the District Court, considering that the potential penalty exceeded that which it had competence to impose, relinquished jurisdiction in favour of the Frankfurt Regional Court.
Under the then Article 24 para. 2 of the Constitution of the Courts Act (Gerichtsverfassungsgesetz), a District Court could "impose neither a penalty of imprisonment for more than three years nor detention for reasons of security (Sicherungsverwahrung)".
78. On 10 October, the 18th Criminal Chamber (Strafkammer) of the Regional Court, to which the case had been assigned, directed that the trial (Hauptverhandlung) should take place on 4, 6 and 11 December. On 25 October, it joined to the pending proceedings a further charge, preferred by the public prosecutor's department on 7 August, alleging that Dr. König had practised on 17 July 1972 in Bad Homburg despite the withdrawal of the requisite authorisation and had caused his patient bodily harm. As the applicant had not appeared, the court on 4 December issued a warrant for his arrest and adjourned the trial sine die.
79. On 1 January 1975, the case was assigned to the 1st Chamber which, however, was composed of the same judges as the 18th Chamber in 1974.
On 2 January, the 1st Chamber ordered that several witnesses be examined on letters rogatory. Witnesses were heard in February and March by the Koblenz, Ahrensburg and Düsseldorf District Courts.
On 24 March, the Chamber revoked the warrant issued on 4 December.
On 15 May, the Vice-President of the Chamber directed that the trial should take place in mid-January 1976; at the same time he ordered that a witness be interrogated again by the Ahrensburg District Court.
80. On 20 June 1975, the Presidential Council of the Regional Court relieved the 1st Chamber of all matters it had to decide as a court of first instance, with effect from 23 June. The proceedings pending against Dr. König were transferred to the 13th Chamber.
The President of the latter Chamber received the case file on 10 July. On 8 August, he postponed the trial until 3, 5, 10 and 12 February 1976; these dates he cancelled on 13 October 1975 for the reason that the Chamber was obliged to deal with another substantial case.
81. On 1 January 1976, all first-instance cases beginning with the letter "K", including the applicant's, were passed to the 25th Chamber of the Regional Court in accordance with the 1976 arrangements for the allocation of cases.
The trial opened before the 25th Chamber on 5 May. On 24 September, after twenty-three days of sittings, the Chamber ordered the discontinuance of the proceedings (Einstellung des Verfahrens) under Article 153 (a) of the Code of Criminal Procedure.
The Chamber's decision reveals that Dr. König's fault was regarded as very slight. As he had undertaken to pay DM 8,000 to the party claiming damages and DM 20,000 to the Treasury, the Chamber considered that there was no longer any public interest in the proceedings being pursued further. The Chamber noted that the applicant had paid over the amounts in question during the actual hearing and specified that its decision to discontinue the proceedings was final.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-85637
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: CANT v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi
TEXT: The applicant, Mr Robert Cant, is a British national who was born in 1947 and lives in Kent. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 9 April 1999. They had no children from the marriage. In November 2000 the applicant applied for widows’ benefits. On 11 December 2000 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant made a request for reconsideration. On 22 March 2001 he was informed that he was not entitled to benefits as he was not a woman.
The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.