CASE OF GAUTRIN AND OTHERS v. FRANCE

1. The case was referred to the Court by the French Government (“the Government”) on 14 April 1997, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention. It originated in four applications (nos. 21257/93 to 21260/93) against the French Republic lodged with the European Commission of Human Rights (“the Commission”) under Article 25 by 105 French nationals on 7 January 1993. The first application was lodged by Mr Norbert Gautrin, the second by Mr Jérôme Fillion, the third by Mr Dominique Mynard, and the fourth jointly by Ms Anne Allemandou, Mr Erick Altabe, Mr Jean-Jacques Assouline, Mr Stéphane Aszerman, Mr Alexandre Athea, Mr Michel Athouel, Mr Jean-Jacques Avrane, Mr Alain Batarec, Mr Richard Benichou, Mr Laurent Bennaim, Mr Gabriel Benzaquen, Mr Jean-Pierre Bertaud, Mr Jean-François Biffaud, Mr Pierre Bleichner, Mr Eric Bocquillon, Mr Jean-Claude Boerner, Mr Bernard Bonduelle, Mr Franck Boumandil, Mr Christophe Boyer, Mr Patrick Brasseur, Mr Jacques Bray, Mr Olivier Caste, Ms Sylvie Caupin, Mr Bruno Chaumont, Ms Claire Chauvin, Ms Françoise Choquet-Croydon, Mr Gilles Copin, Mr Patrick Coulonges, Ms Catherine Daluzeau, Mr Jean-Luc Daubigny, Mr Arnaud Delaye, Mr Jacques Denis, Mr Francis Diez, Mr Patrick Drosne, Ms Marie-Anne Duchateau, Mr Henri Dumora, Mr Loïc Etienne, Mr Roland Fally, Ms Lorraine Fouchet, Mr Pierre Fournier, Mr Denis François, Ms Agnès Frely, Mr Denis Gaildraud, Mr Bertrand Galichon, Mr Eric Gallois, Mr Jean Giffard, Mr Gérard Grangeret, Ms Patricia Guizol, Mr Jean-Claude Guzzo, Mr Michel Herouard, Ms Rolande Horowitz, Mr Eric Kohennof, Mr Gérard Lebars, Mr Jacques Lebas Delacour, Mr Dominique Lebrun, Mr Jean ‑ Philippe Ledos, Mr Philippe Leminez, Mr Christian Lherault, Mr Jérôme Lichnierowicz, Mr Patrick Machain, Mr Denis Magny, Mr Henri ‑ Pierre Mao, Mr Dominique Marsault, Ms Elisabeth Miailhe, Ms Annie Moan, Mr Nabil Nassar, Mr Jean-Yves Naudot, Mr Patrick Noblinski, Mr Denis Ovadia, Mr Jean-Claude Pessereau, Mr François Piot, Mr Marc Pisarik, Mr Alain Pras, Mr Jean-François Pret, Mr Jean-Marc Provini, Mr Louis-Marie Prudhomme, Mr Philippe Quenel, Mr Claude Raffour, Mr Patrick Rogel, Mr Thierry Rosier, Mr Joël Roth, Mr William Roussel, Mr Stéphane Rubinstein, Mr Abraham Sabbah, Mr Louis Schoonoed, Mr Gérard Sedletzki, Mr René Serieys, Mr Didier Serrano, Mr Serge Smadja, Mr Claude Sylvain, Mr Patrick Thibault, Mr Alex Toumson, Ms Nicole Tricoire-Goulier, Mr Marc Uzan, Mr Laurent Vassort, Mr Jérôme Vidal, Mr Jean-Louis Vincent, Mr Tan Vu, Mr Bernard Weill, Mr Jean-Paul Wellhoff, Mr Bruno Wilhelm and Mr Jean-Jacques Wolf.
The Government’s application referred to Articles 44 and 48 and to the declaration whereby France recognised the compulsory jurisdiction of the Court (Article 46). The object of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 § 1 of the Convention.
2. With the exception of Mr Pret, who has died, the applicants stated, in response to the enquiry made in accordance with Rule 33 § 3 (d) of Rules of Court A, that they wished to take part in the proceedings. Mr Boyer and Mr Fillion have instructed Mr Julien, of the Clermont-Ferrand Bar, to represent them before the Court, and the other 102 applicants Ms Vally, of the Paris Bar (Rule 30).
3. The Chamber to be constituted included ex officio Mr L.-E. Pettiti, the elected judge of French nationality (Article 43 of the Convention), and Mr R. Bernhardt, the Vice-President of the Court (Rule 21 § 4 (b)). On 28 April 1997, in the presence of the Registrar, the President of the Court, Mr R. Ryssdal, drew by lot the names of the other seven members, namely Mr Thór Vilhjálmsson, Mr F. Matscher, Mr R. Macdonald, Mr C. Russo, Mr M.A. Lopes Rocha, Mr P. Kūris and Mr U. Lōhmus (Article 43 in fine of the Convention and Rule 21 § 5). Subsequently, Mr Bernhardt, who was unable to take part in the further consideration of the case, was replaced as President of the Chamber by Mr Thór Vilhjálmsson (Rule 21 § 6) and Mr A.B. Baka was called on to complete the Chamber (Rule 22 § 1); as he was also unable to take part in the further consideration of the case, Mr Macdonald was replaced by Mr F. Gölcüklü (ibid.).
4. As President of the Chamber (Rule 21 § 6), Mr Bernhardt, acting through the Registrar, had consulted the Agent of the Government, Mr M. Perrin de Brichambaut, the applicants’ lawyers and the Delegate of the Commission, Mr J.-C. Soyer, on the organisation of the proceedings (Rules 37 § 1 and 38). Pursuant to the order made in consequence, the Registrar received the memorial of Mr Fillion and Mr Boyer on 21 November 1997, the Government’s memorial on 24 November 1997 and the memorial of the other 102 applicants on 25 November 1997. The observations of the Delegate of the Commission were received by the registry on 12 January 1998.
5. Having regard to the opinions expressed by the applicants, the Government and the Delegate of the Commission and having satisfied itself that the condition for derogation from its usual procedure had been met (Rules 26 and 38), the Chamber decided to dispense with a hearing in the case and Mr Bernhardt gave the applicants and the Government leave to file observations on the content of the others’ memorials.
6. The additional observations of the Government and of Mr Fillion and Mr Boyer were received by the registry on 21 January 1998 and those of the other applicants on 22 January 1998.
I. the CIRCUMSTANCES OF THE CASE
7. Associations called “SOS Médecins”, whose object is to provide emergency medical services on call to patients, have been set up in each département; they have formed regional associations which in turn are part of a national association known as “SOS Médecins, France”. The applicants, who are medical practitioners in the Ile-de-France region, are all members of this organisation.
8. A number of doctors’ unions and département councils of the ordre des médecins (Medical Association) lodged complaints with the professional disciplinary bodies against the members of those associations. They maintained, inter alia, that by using a flashing blue light without permission from the authorities and displaying the name “SOS Médecins” on their vehicles, in telephone directories and in advertising brochures, the members of the associations were contravening Article 23 of the Code of Professional Conduct, which prohibited advertising.
Proceedings instituted against the applicants
1. Before the regional council of the Ile-de-France ordre des médecins
9. On 2 March 1989 the National Union of Duty Doctors lodged a complaint against each of the applicants with the regional council of the Ile-de-France ordre des médecins. The French Federation of Paris General Practitioners did likewise on 20 March 1989.
It was alleged that the applicants had contravened Article 23 of the Code of Professional Conduct by displaying the name “SOS Médecins” on their vehicles and prescriptions.
10. On 28 January 1990 the regional council, composed of Dr Fenoll, chairman, and Dr Barkatz, Dr Bernard, Dr Boissin, Dr Castello, Dr Delamarche, Dr Gasch, Dr Groene-Richert, Dr Manheulle, Dr Pommey and Dr Sorrel-Dejerine, members, held that there had been a breach of Article 23 of the Code of Professional Conduct and suspended Dr Gautrin and Dr Mynard from practising medicine for two months and Dr Fillion and ninety-six other doctors for one month; the remaining six applicants received a reprimand.
2. Before the National Council of the ordre des médecins
11. The applicants appealed against those decisions to the disciplinary section of the National Council of the ordre des médecins.
12. On 25 March 1992 that section, chaired by Mr Coudurier, honorary member of the Conseil d’Etat, and composed of Dr Dusserre, Dr Jung, Dr Klepping, Dr Vergeylen, Dr Gatel and Dr Gilbert, members, upheld the decisions of the regional council as to the finding that there had been a breach of the Code of Professional Conduct, but reduced the penalties: Dr Gautrin and Dr Mynard were suspended from practising medicine for fifteen days, the doctors who had received a month’s suspension were given a reprimand and those who had been reprimanded were given a warning only. The applicants were informed of the decision on 7 July 1992. They did not appeal to the Conseil d’Etat.
relevant domestic law and practice
A. The Code of Professional Conduct and advertising
13. Article 23 of the Code of Professional Conduct provided:
“Medicine must not be practised as if it were a trade. Doctors shall not use any form of advertising or publicity, whether direct or indirect.
No medical exhibition shall be held or demonstration performed unless their purpose is exclusively scientific or educational.”
14. The Code of Professional Conduct was reformed by Decree no. 95 ‑ 1000 of 6 September 1995. It now provides that any doctor participating in a duty, emergency or on-call doctor scheme “... shall be permitted, when carrying out his task, to affix a removable badge to his vehicle bearing the words ‘doctor on emergency call’, but no others...” and that the badge must be removed “... as soon as his role in the emergency is over...” (Article 78). The code also now sets out, among other things, the information which doctors are allowed to reproduce on their prescriptions and in directories available to the public (Articles 79–80).
B. The disciplinary rules governing the medical profession
15. 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) Before the professional disciplinary bodies
16. The regional councils exercise disciplinary jurisdiction at first instance within the ordre des médecins. Cases may be brought before them by, among others, the département councils, and doctors’ unions and individual registered medical practitioners within their territorial jurisdiction (Article L. 417 of the Public Health Code).
Regional councils may only deliberate validly if at least five of their members are present. Decisions are taken on a majority vote and must be reasoned (Articles 15 and 16 of Decree no. 48-1671 of 26 October 1948, as amended).
17. The regional council of the ordre des médecins for the Paris area is made up of twenty-six full members divided into two chambers and of thirteen substitute members; they are all elected by members of the département councils (Articles L. 398 et seq.). Each chamber elects a chairman from among its members (Article L. 401).
(ii) The disciplinary section of the National Council
18. The National Council of the ordre des médecins is composed of thirty-eight members, thirty-two of whom are directly elected by the département councils.
19. After each election of a proportion of its members (every two years) the National Council 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 may 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, in principle, suspensive effect (Article L. 411 of the Public Health Code).
20. 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 proper 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.”
21. At the time the events in the instant case occurred, the Conseil d’Etat held, following its settled case-law (extracts from its judgment of 29 October 1990 in the case of Diennet):
“...the provisions of Article 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 § 1 of the aforementioned Convention relating to the holding of hearings in public and the impartiality of tribunals.
... 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 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.
22. 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).
23. 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;
A party wishing to challenge a judge will be estopped from doing so unless he makes his challenge as soon as he becomes aware that a ground exists. “Under no circumstances” may a challenge be made after the hearing (Article 342 of the New Code of Civil Procedure). The challenge must “clearly set out the grounds and be accompanied by supporting evidence” (Article 344).
On receipt of a challenge, the judge concerned shall “withdraw” until the question has been decided (Article 346). He has eight days in which to inform the court in writing whether he accedes to the request that he stand down – in which eventuality he shall be replaced immediately – or, if he does not propose to stand down, of the reasons for his resisting the challenge (Articles 347 and 348); in the latter eventuality, or if he does not reply, the challenge is “decided as soon as possible by a court of appeal or, if made against a member of a lay tribunal, by the president of the court of appeal, from whose decision no appeal shall lie” (Article 349). If the challenge is upheld, the judge is replaced (Article 352); if it is rejected, the challenger may be ordered to pay a civil fine of between 100 and 10,000 French francs without prejudice to any claim for damages that may be made (Article 353).
To prevent an estoppel arising, challenges against more than one judge shall be made together unless a ground for challenge subsequently comes to light (Article 355).
A challenge against all the judges of a chamber or a court of appeal is equivalent to an application for transfer of the case to another tribunal of the same type on grounds of bias (Rouen Court of Appeal, 12 July 1973, Gazette du Palais 1974, 43). No such application may be made in respect of the disciplinary section of the National Council of the ordre des médecins as there is no other body of that type to whom the case can be transferred ( Conseil d’Etat, 3 May 1957, Sieur Nemegyei, Recueil, pp. 279–80).
24. Article 18 of Decree no. 48-1671 of 26 October 1948, as amended, provides, inter alia :
“Members of regional councils may be challenged for the reasons set out in Article [L.731-1 of the Judicature Code]. Challenges shall be made at least three days before the hearing starts. Members of the council who are related by blood or marriage up to the fourth degree inclusive to another member of the council or to the doctor ... concerned, members of regional councils who individually or as part of a group have occupational interests in common with each other or with the practitioner concerned, and any member who initiated the complaint that led to the disciplinary proceedings shall be precluded from hearing the challenge.”
The grounds for challenge set out in Article L. 731-1 of the Judicature Code are the same as those set out in Article 341 of the New Code of Civil Procedure.
4. Holding of proceedings in public
(a) The rules applicable at the material time
25. 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.”
While the decisions of the disciplinary bodies of the ordre des médecins contained the names of the members who were present, they were recorded in a special register to which third parties did not have access and were not published. They were notified to certain individuals and institutions only (Articles 17 and 28 of the decree).
26. 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).
PROCEEDINGS BEFORE THE COMMISSION
27. The applicants applied to the Commission on 7 January 1993. They complained of two breaches of Article 6 § 1 of the Convention in that, firstly, the hearings before the regional council of the Ile-de-France ordre des médecins and the National Council of the ordre had not been held in public and, secondly, those bodies had not been impartial. They complained also of a breach of their right to be presumed innocent, as guaranteed by Article 6 § 2, and of Article 13, in that they had not had an effective remedy before a national authority.
28. On 27 November 1995 the Commission declared the applications (nos. 21257/93 to 21260/93) admissible as regards the complaints under Article 6 § 1. In its report of 26 November 1996 (Article 31), it expressed the unanimous opinion that there had been a violation of Article 6 § 1 in respect of both complaints. The full text of the Commission’s opinion is reproduced as an annex to this judgment [4].
29. In their memorial Mr Fillion and Mr Boyer asked the Court to
“declare the applications admissible and well-founded;
hold that Article 6 § 1 of the Convention has been infringed in that the applicants did not have the right to:
(a) have their case heard in public (which the French Government do not contest);
(b) an independent and impartial tribunal;
(c) an effective remedy before a judicial body of full jurisdiction able to provide a legal solution within a reasonable time”.
“the Court to reject the French Government’s arguments and, consequently, to grant their requests as set out in their memorial”.
31. The Government asked the Court to
(a) as the Government’s primary submission, for failure to exhaust domestic remedies;
(b) in the alternative, in so far as it concerned the lack of impartiality of the disciplinary section of the National Council of the Ordre des médecins ”.
I. ALLEGED VIOLATIONs OF ARTICLE 6 § 1 OF THE CONVENTION
32. The applicants complained that their cases had not been heard in public by an impartial tribunal. They relied on Article 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 ... public hearing ... by an independent and impartial tribunal... 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 § 1
33. It is clear from the Court's settled case-law that disciplinary proceedings in which what is at stake – as in the instant case, regard being had to the penalties the professional disciplinary bodies could impose – is the right to continue to practise medicine as a private practitioner give rise to “ contestations (disputes) over civil rights” within the meaning of Article 6 § 1 (see, among other authorities, the König v. Germany judgment of 28 June 1978, Series A no. 27, pp. 29–32, §§ 87–95; the Le Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, pp. 19–23, §§ 41–51; the Albert and Le Compte v. Belgium judgment of 10 February 1983, Series A no. 58, pp. 14–16, §§ 25–29; and the Diennet v. France judgment of 26 September 1995, Series A no. 325-A, p. 13, § 27).
It was, moreover, not disputed before the Court that Article 6 § 1 was applicable to the circumstances of this case.
B. Compliance with Article 6 § 1
1. Publicity of proceedings before professional disciplinary bodies
34. The applicants maintained that there had been a breach of Article 6 § 1 because the proceedings before the professional disciplinary bodies had not been held in public.
(a) The Government’s preliminary objection
35. The Government maintained, as they had previously done before the Commission, that the applicants could not be considered to have exhausted domestic remedies as required by Article 26 of the Convention as they had not lodged that complaint with the Conseil d’Etat.
They did not dispute that at the material time it was the highest administrative appeal court’s settled case-law that Article 6 § 1 of the Convention was inapplicable to professional disciplinary bodies, but stated that there was a trend within that court towards “revising its position conceptually” bringing it in line with the Court’s case-law. Consequently, it could not be said that an appeal to the Conseil d’Etat would have been “bound to fail”. In support of that argument, the Government referred to the Conseil d’Etat ’s Département de l’Indre judgment of 29 July 1994, in which it had quashed a decision reached after a hearing by a “specialised body of the same sort as the disciplinary section of the National Council of the ordre des médecins ” that had not been held in public.
36. The applicants submitted that an appeal on points of law would have been pointless, because in 1992, notwithstanding the Court’s case-law on the subject, it was the Conseil d’Etat ’s settled case-law that Article 6 § 1 did not apply to disciplinary bodies. In that connection, the judgment of 29 July 1994 cited by the Government was not relevant as it concerned a social-security tribunal, not a disciplinary body (the Conseil d’Etat did indeed accept that disputes concerning social security were “civil” in nature).
37. In its decision on the admissibility of the applications, the Commission dismissed this objection on the ground that in view of the Conseil d’Etat ’s settled case-law an appeal on points of law would have been “definitely bound to fail”. The Delegate added that at the material time it was expressly laid down by statute that medical disciplinary hearings were not to be heard in public.
38. The Court reiterates that Article 26 requires persons wishing to make an application to the Strasbourg institutions to have prior recourse to such domestic remedies as are “adequate” and “effective”.
However, at the material time, firstly, Decree no. 48-1671 of 26 October 1948 expressly precluded holding in public hearings before the regional councils of the ordre des médecins and the disciplinary section of the National Council of the ordre and, secondly, it was the Conseil d’Etat ’s settled case-law that the provisions of Article 6 § 1 of the Convention were inapplicable to proceedings before those bodies (see paragraphs 21 and 25 above). In those circumstances, an appeal on points of law based on that complaint would not have been an “adequate” and “effective” remedy.
The objection must consequently be dismissed.
39. The applicants submitted that the fact that hearings before disciplinary bodies were not held in public amounted to a violation of Article 6 § 1.
40. The Government acknowledged that Decree no. 48-1671 of 26 October 1948 – which was in force at the material time – expressly excluded a public hearing. They nonetheless maintained that if the applicants had appealed to the Conseil d’Etat they would have had a hearing that complied with the requirements of Article 6 § 1.
41. The Commission noted that neither matters of professional secrecy nor the protection of the private life of the applicants or of their patients was involved, deduced therefrom that the applicants had a right to have their case heard in public and concluded that there had been a violation of Article 6 § 1.
42. The Court reiterates that the holding of court hearings in public constitutes a fundamental principle enshrined in Article 6 § 1. This public character protects litigants against the administration of justice without public scrutiny; it is also one of the means whereby people’s 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 § 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 Diennet judgment cited above, pp. 14–15, § 33).
Article 6 § 1 does provide that the press and public may, in certain circumstances, be excluded from all or part of the trial. However, it has not been suggested that either of the exceptions referred to in that provision applied in the present case.
Having regard to its conclusions in paragraph 38 above, the Court considers that the fact that the applicants would have had a hearing in public if they had appealed to the Conseil d’Etat is irrelevant (ibid., p. 15, § 34).
43. Consequently, there has been a breach of Article 6 § 1 in that the applicants’ case was not heard “in public” by the Ile-de-France regional council of the ordre des médecins or by the disciplinary section of the National Council of the ordre.
2. Impartiality of the professional disciplinary bodies
(a) The Government’s preliminary objections
44. In the Government's submission, as the applicants had not exercised their right of challenge before the professional disciplinary bodies and their right to complain to the Conseil d’Etat that those bodies were not impartial, they had not exhausted domestic remedies.
(i) Objection based on failure to exercise the right of challenge
45. As they had done before the Commission, the Government maintained that the applicants could have challenged the members of the professional disciplinary bodies whom they suspected of bias. Article L. 421 of the Public Health Code taken together with Article 341 of the New Code of Civil Procedure provided such a possibility, in particular with respect to members having “a personal interest in the dispute” or before whom “the case ha[d] earlier come ... as a[n] ... arbitrator or [members having] advised one of the parties”. Article 18 of Decree no. 48 ‑ 1671 of 26 October 1948 added that “members ... who individually or as part of a group have occupational interests in common with each other” could be challenged. The Government referred in particular to a decision of the disciplinary section of the National Council of 22 June 1977 in which it had quashed a decision of a regional council on the ground that one of its members, in respect of whom a challenge had been filed, had failed to stand down even though the challenge had been founded.
The Government underlined that the applicants could not have been unaware of the composition of the disciplinary section since its members had been elected in June 1989 and their term in office – which should have ended on 17 June 1991 – had been extended until 31 December 1992 by a law of 17 June 1991. Even if it was accepted, for the sake of argument, that before the hearing the applicants had not been certain of the identity of the members of the bodies concerned, it would have been open to them to exercise their right of challenge at the hearing. The Government added that the fact that the hearing was not held in public and that disciplinary proceedings were confidential did not prevent either the applicants or their counsel being present at the hearing and therefore exercising their right of challenge. Furthermore, if the disciplinary section had rejected their challenges, they could have appealed on points of law to the Conseil d’Etat on the basis of that refusal.
46. The applicants pointed out that the right of challenge was “illusory and theoretical” before the professional disciplinary bodies. A challenge would have had to have been made before deliberations in the case began, contain a detailed indication of the grounds for challenge and be accompanied by supporting evidence. Yet the confidential nature of the proceedings before the professional disciplinary bodies had prevented the applicants from finding out in such a brief period facts capable of founding a challenge; as they did not have access to previous decisions of those bodies it was not possible for them to establish whether a member of the body that was to hear their case had been a party in or was connected to a party in a similar case. In those circumstances, it was in reality up to the suspect members themselves to stand down.
In any event, even if they had exercised their right of challenge, that would not have put an end to the “conflict of interest” complained of because the Conseil d’Etat had held that “a regional council is properly constituted to rule on a complaint by a doctors’ trade-union even if it includes three members of that union who cannot be regarded as being the complainants” ( Conseil d’Etat, Colombel judgment of 16 December 1960). Furthermore, lack of impartiality was not a statutory ground for challenge; moreover, the case-law referred to by the Government did not in any way show that such a ground would be likely to succeed before the disciplinary section of the National Council of the ordre or before the Conseil d’Etat.
Lastly, only the individual members of the disciplinary body could be challenged, not the entire body itself; in order to challenge the disciplinary body as a whole it would have been necessary to apply for a transfer on grounds of bias, a remedy that was excluded before the disciplinary section of the National Council of the ordre des médecins.
47. In its decision on the admissibility of the applications, the Commission dismissed that objection. In its view, in order to exercise their right of challenge the applicants had to have the opportunity of knowing, before the hearing, the possible grounds for challenge. However, the fact that the hearing was not held in public and the resultant secrecy of the disciplinary proceedings meant that the applicants could not know for certain whether grounds for challenging any of the members of the National Council existed.
48. The Court notes that the applicants complained not of bias on the part of any individual member of the disciplinary bodies hearing their cases, but of the “objective” bias of those bodies (see paragraphs 52 and 59 below).
The right of challenge may only be exercised in respect of individual members of the tribunal, not in respect of the tribunal as a whole. Had the applicants had recourse to that procedure in the instant case on the basis of the complaint referred to above, they would have had to challenge all the members of the disciplinary bodies concerned, which would have been equivalent to applying for transfer of the case to another tribunal of the same type on grounds of bias; under the Conseil d’Etat ’s case-law, however, no such application may be made in respect of the disciplinary section of the National Council of the ordre des médecins (see paragraph 23 above). It follows that in any event the exercise by the applicants of their right of challenge would not have constituted an “effective” remedy. The objection must therefore be dismissed.
(ii) Objection based on failure to appeal on points of law
49. The Government submitted that the applicants could have appealed on points of law and, regardless of any challenge made before the tribunal hearing the case, complained to the Conseil d’Etat that “the tribunal was not properly constituted”. The Conseil d’Etat could have quashed the decision of the disciplinary section and either ruled on the merits of the case itself, or remitted it to the same disciplinary section to decide, possibly with a differently composed bench.
The Government maintained that they had raised this objection before the Commission, but that the Commission had not ruled on it.
50. Like the Delegate of the Commission, the applicants submitted that the Government were estopped from raising this objection before the Court as they had not done so before the Commission.
The applicants added that in any event the issue of whether a tribunal was “properly constituted” did not concern the tribunal’s impartiality, but compliance with the rules governing the organisation of courts and tribunals – such as whether or not they should sit as a bench – that were not in issue here. As for bringing an appeal on points of law on the basis of Article 6 § 1 of the Convention, they considered that it would have been pointless because in 1992, notwithstanding the case-law of the European Court of Human Rights on the subject, it was the Conseil d’Etat ’s settled case-law that that provision was inapplicable to disciplinary bodies. Furthermore, because of the confidential nature of the proceedings before the disciplinary bodies of the ordre, the applicants would not have been able to learn of some of the grounds that could have been raised on appeal, such as the “interest” of some of the members of those bodies, until after the time-limit for appealing had expired. Further still, when the Conseil d’Etat quashed a decision of the disciplinary section it was not bound to rule on the merits of the case and could remit it to the same disciplinary section, which was a single entity; it would have been only after a second appeal on points of law that the Conseil d’Etat would have decided the case finally. That system itself did not satisfy the requirements of Article 6 § 1, which also embodied the right of individuals to have their case heard within a “reasonable time”. Lastly, as such appeals had no suspensive effect, they could not be described as “effective”.
51. The Court reiterates that it takes cognisance of preliminary objections in so far as the State in question has already raised them, at least in substance and with sufficient clarity, before the Commission and that when a State relies on the exhaustion rule, it must indicate with sufficient clarity the effective remedies to which the applicants have not had recourse (see, among many other authorities, the Stran Greek Refineries and Stratis Andreadis v. Greece judgment of 9 December 1994, Series A no. 301-B, p. 77, §§ 32 and 35).
In the present case, in the section of their observations to the Commission dealing with exhaustion of domestic remedies, the Government submitted:
“It should be remembered that none of the applicants appealed on points of law to the Conseil d’Etat ... 1. Firstly, it is incorrect to say that an appeal to the Conseil d’Etat, which hears appeals on points of law against decisions of the disciplinary section of the National Council of the ordre des médecins ... does not constitute an adequate legal remedy for the hearing of their complaints... 2. Secondly, it should be recalled that the practice of the Conseil d’Etat has been, for a long time and under its settled case-law, to hear complaints of a lack of impartiality on the part of professional disciplinary bodies... It thus scrutinises their independence and impartiality in a way that is wholly consistent with the review effected by the Strasbourg institutions under Article 6 § 1 of the Convention... However, even before complaining to the Conseil d’Etat that certain members of the councils of the ordre were not impartial, the applicants should have exercised their right to challenge one or more members of those councils, seeing that they had doubts on that score... Had the applicants exercised their right to challenge the members of the disciplinary body, they could, if their challenge was rejected, have raised that issue again in their appeal to the Conseil d’Etat. In these circumstances, the French Government consider that the applicants, who failed to exercise their right to challenge those members of the disciplinary bodies they suspected of bias and to bring that complaint before the Conseil d’Etat, which had jurisdiction to hear it, have not satisfied the requirement of exhaustion of domestic remedies...”
It is clear that even though it did not use the words “irregularity in the constitution of the tribunal”, the Government did raise before the Commission the applicants’ failure to lodge with the Conseil d’Etat, regardless of whether or not the right of challenge had been exercised before the disciplinary bodies of the ordre des médecins, their complaint that those bodies were not impartial. The Government are therefore not estopped from now raising this objection.
As to the merits of the objection, the Court notes that if the Conseil d’Etat had quashed the decision of the disciplinary section of the National Council of the ordre, it would not have been bound to rule on the merits of the case. If, however, it had remitted the case, it could only have done so to the same body without there being any requirement that it be differently constituted; it would only have been after a second appeal on points of law that the Conseil d’Etat would have been required to decide the case finally (see paragraphs 20–21 above). In other words, in order to have their complaint decided by a “tribunal” other than the very one whose impartiality they challenged, the applicants would in all likelihood have had to appeal twice to the Conseil d’Etat. In the circumstances, it cannot be maintained that such a remedy would, in the instant case, have been “adequate”. Consequently, the objection must be dismissed.
(i) Arguments of those appearing before the Court
52. The applicants complained that the members of the regional councils and the National Council – which elected a disciplinary section from among its members – were elected by the département councils of the ordre, which participated in the management of associations providing on-call and duty medical assistance; the latter were competitors of SOS Médecins and, moreover, doctors’ unions were also involved in them. As a result those bodies were naturally hostile towards the applicants and had common interests with the complainant unions that were irreconcilable with the requirements of Article 6 § 1.
53. The applicants were particularly critical of the fact that Dr Boissin, Dr Gasch and Dr Barkatz had been on the regional council.
In 1990 Dr Boisson had (as a representative of the Paris département council) been on the board of an association that was a direct competitor of SOS Médecins (“Garde médicale de Paris”) with, inter alia, Dr Aghulon, the vice-chairman of one of the complainant unions and Dr Liwerant, treasurer of that union and chairman of the board of Garde médicale de Paris; moreover, the Paris département council had granted a loan to that association.