CASE OF KRASKA v. SWITZERLAND

1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 13 December 1991 and by the Government of the Swiss Confederation ("the Government") on 13 February 1992, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 13942/88) against Switzerland lodged with the Commission under Article 25 (art. 25) by a Swiss national, Mr Martin Kraska, on 2 April 1988.
The Commission ’ s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Switzerland recognised the compulsory jurisdiction of the Court (Article 46) (art. 46); the Government ’ s application referred to Articles 45, 47 and 48 (art. 45, art. 47, art. 48). The object of the request and 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 para. 1 (art. 6-1) of the Convention.
2. In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 30).
3. The Chamber to be constituted included ex officio Mr L. Wildhaber, the elected judge of Swiss nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 24 January 1992, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr F. Matscher, Mr J. De Meyer, Mrs E. Palm, Mr R. Pekkanen, Mr J.M. Morenilla, Mr A.B. Baka and Mr M.A. Lopes Rocha (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber (Rule 21 para. 5) and, through the Registrar, consulted the Agent of the Government, the Delegate of the Commission and the applicant ’ s lawyer on the organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant to the orders made in consequence, the Registrar received the memorials of the Government and the applicant on 10 and 11 August 1992 respectively. On 17 September the Secretary to the Commission informed the Registrar that the Delegate would submit oral observations; he had previously produced various documents requested by the Registrar on the President ’ s instructions.
5. In accordance with the President ’ s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 26 October 1992. The Court had held a preparatory meeting beforehand, in the course of which it rejected a request made in the applicant ’ s memorial for it to hear witnesses.
There appeared before the Court:
of the European Law and International Affairs Section, Federal
of the European Law and International Affairs Section, Federal
The Court heard addresses by Mr Boillat for the Government, Mr Loucaides for the Commission and Mr Lob for the applicant, as well as their replies to its questions. Mr Lob lodged various documents.
6. Mr Martin Kraska is a Swiss national and lives in Zurich. He obtained his diploma in medicine in 1981 and has since practised mostly as an assistant doctor ( Assistenzarzt ), for which activity he does not require an authorisation in the Canton of Zurich.
A. Proceedings before the Zurich authorities and courts
7. On 19 October 1982 he received the authorisation to practise independently in the canton. The authorisation was, however, withdrawn by the Health Authority ( Gesundheitsdirektion ) on 26 April 1983 on the ground that, having moved to another canton, he had not used it.
8. The applicant lodged an administrative appeal ( Rekurs ) which the Cantonal Government ( Regierungsrat ) of Zurich rejected on 17 August 1983 for the following reasons: the possibility that a new authorisation would be granted as soon as he returned to Zurich was not sufficient to confer on the applicant a legally protected interest; in any event the authorisation in question was not of general validity, but related to a specific activity; as it was, Mr Kraska no longer lived in the canton.
9. From 6 August to 17 September 1984 the applicant worked as an assistant doctor in the emergency service of the District of Zurich Medical Association ( Ärztlicher Notfalldienst des Ärzteverbandes des Bezirks Zurich).
10. On 28 August 1984 he fetched a partially paralysed patient from a private old peoples ’ home and took her back to her flat, where he treated her. Shortly afterwards he drew up a bill on an emergency service form for 7,447.80 Swiss francs and sent it to the guardian ( gesetzlicher Vertreter ) of the patient, who had been placed in guardianship on a temporary basis on 13 September 1984. The sum in question was to be paid directly into the applicant ’ s post office account and not that of the medical association.
A prosecution was subsequently brought against Mr Kraska for fraud and various infringements of the Zurich Public Health Act 1962; in particular it was alleged that he had treated the patient without being in possession of an authorisation to practise medicine independently as was required under section 7 para. 1 (a) of that Act.
The Zurich District Court ( Bezirksgericht ) acquitted him on 13 January 1986, finding inter alia that the indictment had not indicated in sufficiently specific terms the medical treatment involved.
11. In the meantime, on 31 January 1985, the applicant had attempted to obtain a new authorisation. On 11 September 1985 the Zurich Health Authority had refused his request on the ground that he was not "trustworthy" within the meaning of section 8 para. 1 of the Public Health Act.
On 1 October 1986 the Zurich Cantonal Government dismissed the applicant ’ s appeal. It took the view that he had infringed section 7 para. 1 (a) of the Act by submitting a bill for the treatment in question and that his acquittal by the District Court made no difference in this respect. The Cantonal Government noted in particular that in his bill the applicant had himself classified the treatment as medical acts.
12. In an appeal ( Beschwerde ) to the Zurich Administrative Court ( Verwaltungsgericht ) the applicant again sought the authorisation to practise his profession independently. The court dismissed his appeal on 11 March 1987. It also directed that he should wait until the beginning of 1988 before re-applying.
B. Proceedings in the Federal Court
13. By a memorial of seventy-three pages Mr Kraska ’ s lawyer lodged with the Federal Court ( Bundesgericht ) a public-law appeal ( staatsrechtliche Beschwerde ), on which five judges deliberated at a public hearing on 22 October 1987 (section 17 para. 1 of the Federal Courts Act). The applicant ’ s lawyer was present in the courtroom, but was not allowed to address the court. Judge X submitted his report; Judge Y, who did not in fact have the status of co-rapporteur attributed to him at paragraph 68 of the Commission ’ s opinion, stated that he was unable to accept the conclusions of the report and proposed a solution contrary thereto. During the discussion which followed, a third judge put forward a counter proposal, which was adopted by the majority.
In a letter to his client, the lawyer described the course of the deliberations. According to him, Judge X had proposed that the applicant ’ s public-law appeal should be allowed in full and that he should be granted the authorisation to practise. Judge Y had stated that he had been irritated by the length of the memorial, of which he had been able to read only thirty or so pages, and had complained that it had not been possible for him to study the file because, owing to an error on the part of the registry, he had not received it until a day before the hearing; he had then called for the dismissal of the appeal, basing his view exclusively on the above-mentioned decisions of 11 September 1985, 1 October 1986 and 11 March 1987 (see paragraphs 11-12 above).
14. The Federal Court gave judgment on the same day. By four votes to one, that of Judge X, it quashed the decision in so far as it imposed a waiting period on the applicant but dismissed the remainder of the appeal.
It first declared a number of the applicant ’ s complaints inadmissible. It stated, nevertheless, that in cases of this kind, in the event of the appeal ’ s succeeding, it could by way of exception not only quash the contested decision, but also grant the authorisation sought, if all the other conditions were satisfied.
The Federal Court then noted that, according to its case-law, the right to freedom of commerce and industry, guaranteed by Article 31 of the Federal Constitution, embraced the right to practise medicine on a professional basis.
Having examined the criticisms levelled by the health authorities, it formed the opinion that at least two of them appeared material to assessing the applicant ’ s honesty: he had carried out a medical act without the necessary authorisation; in addition, the bill relating thereto dealt with both medical and non-medical acts and he had drawn it up on an emergency service form, thereby giving the impression that it concerned only the former.
15. On 8 December 1987 the Health Authority of the Canton of Zurich granted Mr Kraska ’ s third application for a new authorisation.
2. The applications to reopen the proceedings
16. On 6 November 1987 Mr Kraska requested the Federal Court to re-examine its judgment of 22 October 1987, complaining that it had given its decision without sufficient knowledge of the file.
His application was dismissed on 14 March 1988 on the ground, inter alia, that there was no legal basis for reopening the proceedings. The Federal Court summarised the contested deliberations as follows:
"On the occasion of the public deliberations one judge expressed his dissatisfaction that the documents had not been available for a sufficiently long time (they had been sent first to a substitute judge); he had therefore been able to read thoroughly only the first thirty-five pages of the - much too long - appeal memorial which comprised seventy-three pages."
17. Mr Kraska subsequently filed three other applications for the reopening of the proceedings in the Federal Court; they were dismissed on 5 May and 23 August 1988 and on 6 June 1989.
PROCEEDINGS BEFORE THE COMMISSION
18. Mr Kraska lodged his application with the Commission on 2 April 1988. He complained of a violation of Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) of the Convention, and of Article 3 (art. 3). A member of the Federal Court had allegedly expressed his view on the applicant ’ s public-law appeal without having examined the file; the Federal Court had, he maintained, found a violation of the Zurich Public Health Act despite the judgment of 13 January 1986 acquitting him; finally he claimed that the proceedings conducted before the competent authorities and courts had constituted inhuman and degrading treatment.
19. On 4 October 1990 the Commission declared the complaint based on Article 6 para. 1 (art. 6-1) admissible, but found the remainder of the application (no. 13942/88) inadmissible. In its report of 15 October 1991 (made under Article 31) (art. 31), the Commission expressed the opinion by fourteen votes to five that there had been a violation of that provision. The full text of the Commission ’ s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment [*].
FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
20. In their memorial the Government requested the Court to "find that Switzerland did not violate the ... Convention ... in respect of the facts that gave rise to Mr Martin Kraska ’ s application".
21. Mr Kraska claimed that he had not had a fair trial in the Federal Court on 22 October 1987 inasmuch as one of the judges had not been able to read the whole file. He relied on Article 6 para. 1 (art. 6-1) of the Convention, according to which:
"In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing by ... [a] ... tribunal ..."
The Government contested this allegation, whereas the Commission accepted it in substance.
22. In his oral pleadings the applicant ’ s lawyer questioned whether the Court had jurisdiction to rule on various points raised by the Government concerning the facts of the case, the establishment of which, he argued, fell to the Commission and to the Commission alone.
The Court cannot accept this argument, which is not consistent either with Article 45 (art. 45) of the Convention, or with Rule 41 et seq. of the Rules of Court, or with its case-law and practice. The Court is vested with full jurisdiction within the limits of the case as referred to it and is competent, inter alia, to take cognisance of any question of fact which may arise in the course of consideration of the case. Admittedly it has recourse to this power fairly exceptionally, in view of the primary role in this sphere which Articles 28 para. 1 and 31 (art. 28-1, art. 31) of the Convention entrust to the Commission, but it is not bound by the findings in the Commission ’ s report; it remains free to make its own assessment of these findings and, where appropriate, to depart from them, in the light of all the material which is before it or which, if necessary, it obtains (see, among other authorities, the De Wilde, Ooms and Versyp v. Belgium judgment of 18 June 1971, Series A no. 12, p. 29, para. 49, and the Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201, p. 29, para. 74).
A. Applicability of Article 6 para. 1 (art. 6-1)
23. In the Government ’ s contention, Article 6 para. 1 (art. 6-1) does not apply to the examination of an application for an authorisation to practise medicine. The grant of such an authorisation was, they maintained, an administrative act which was subject to certain conditions and conferred no individual right; it was accordingly impossible to speak in the instant case of a dispute (contestation) concerning a "right". In the alternative, if there were such a right, it was not a "civil right", on account of the public-law features inherent in the exercise of the profession in question.
In addition, the Government requested the Court to rule on the applicability of Article 6 para. 1 (art. 6-1) where the Federal Court gives judgment, on a public-law appeal, as a constitutional court.
24. The Court notes in the first place that Article 31 of the Swiss Constitution guarantees the freedom of professional activity, construed by the Federal Court as embracing the medical profession (see paragraph 14 above). The dispute therefore concerned the very existence of a right which could be said, on arguable grounds, to be recognised under domestic law (see, inter alia, the H. v. Belgium judgment of 30 November 1987, Series A no. 127-B, p. 31, para. 40). In addition, the dispute was genuine and of a serious nature (see, among other authorities, the Benthem v. the Netherlands judgment of 23 October 1985, Series A no. 97, p. 15, para. 32). As Mr Kraska had obtained a medical diploma in 1981, he was entitled to apply for an authorisation to practise independently in Zurich once he satisfied the conditions laid down by law; he had held one in 1982 and 1983, but had subsequently lost it because he no longer lived in the canton (see paragraphs 6-7 above).
25. On the question of whether the right in issue was a "civil right", the Court refers to its case-law concerning the medical profession (the König v. Germany judgment of 28 June 1978, Series A no. 27, p. 31, paras. 91-92; the Le Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, p. 20, paras. 44-45; and the Albert and Le Compte v. Belgium judgment of 10 February 1983, Series A no. 58, p. 14, para. 27). It is true that in Switzerland this profession has features which are undeniably of a public-law nature: it is subject to administrative rules, enacted in the public interest, and its exercise depends on the issue of an authorisation by the Cantonal Health Authority. Nevertheless, the applicant wished to work in the private sector, on the basis of contracts concluded between him and his patients (see, mutatis mutandis, the H. v. Belgium judgment, cited above, Series A no. 127-B, p. 33, para. 47 (a)). The dispute between him and the Zurich Government therefore concerned a "civil right".
26. As to whether Article 6 para. 1 (art. 6-1) also applied to the examination of Mr Kraska ’ s public-law appeal, the Court reiterates that proceedings come within the scope of this provision, even if they are conducted before a constitutional court, where their outcome is decisive for civil rights and obligations (see, inter alia, the Ringeisen v. Austria judgment of 16 July 1971, Series A no. 13, p. 39, para. 94, and the Le Compte, Van Leuven and De Meyere judgment, cited above, p. 20, para. 44); in order to determine whether this is so in a given case, it is necessary to have regard to all the circumstances (see, among other authorities, mutatis mutandis, the Bock v. Germany judgment of 29 March 1989, Series A no. 150, p. 18, para. 37).
The applicant complained that the Zurich Administrative Court had denied him the right to practise medicine independently. Moreover, it was open to the Federal Court not only to quash the contested judgment, but also - albeit exceptionally - to grant the authorisation which the applicant was seeking (see paragraph 14 above). Indeed he was able to obtain the authorisation on 8 December 1987 as a result of the Federal Court ’ s decision to annul the waiting period imposed on 11 March 1987 (see paragraphs 12, 14 and 15 above). The direct effect of its judgment of 22 October 1987 on the recognition of the right claimed is consequently beyond question.
27. In short, Article 6 para. 1 (art. 6-1) is applicable in the instant case.
B. Compliance with Article 6 para. 1 (art. 6-1)
28. Mr Kraska inferred from certain remarks made by Judge Y during the public deliberations in the Federal Court that the judge must have given his opinion without thorough knowledge of the file (see paragraphs 13 and 16 above). In his submission, there would only have been a fair trial if each of the members of the court had been able to examine the available documents at length.
29. The Commission stressed the particular importance of the document which the judge had been unable to finish reading, namely the appeal memorial or the document instituting the proceedings in the Federal Court.
30. It falls to the Court to decide whether the contested proceedings considered as a whole were fair within the meaning of the Convention. The effect of Article 6 para. 1 (art. 6-1) is, inter alia, to place the "tribunal" under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision (see, among other authorities, mutatis mutandis, the Barberà, Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A no. 146, p. 31, para. 68). It has to be determined whether this condition was satisfied in the instant case.
31. As the Government pointed out, the Health Authority, the Cantonal Government and the Administrative Court of Zurich had carefully studied Mr Kraska ’ s application for an authorisation. Once the matter was brought before the Federal Court, the judges assigned to sit in the case all had access to the file of the cantonal proceedings and the rapporteur communicated to them his opinion a few days before the deliberations. They were also able, in principle, to consult their own court ’ s file and in particular the appeal memorial. However, one of them, Judge Y, complained, at the public deliberations on 22 October 1987, that he had received it only the previous day and that he had been able to read thoroughly only half of the memorial, which was moreover much too long in his view (see paragraphs 13 and 16 above). Mr Kraska ’ s lawyer was left with the impression that the judge did not have sufficient knowledge of the case.
32. The Court has already stressed on numerous occasions the importance of appearances in the administration of justice, but it has at the same time made clear that the standpoint of the persons concerned is not in itself decisive. The misgivings of the individuals before the courts, for instance with regard to the fairness of the proceedings, must in addition be capable of being held to be objectively justified (see, among other authorities, mutatis mutandis, the Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, p. 21, para. 48).
In the present case Judge Y took an active part in the deliberations; he went so far as to propose a solution contrary to that recommended by the rapporteur and showed that he was familiar with the case. Ultimately the Federal Court adopted neither of these two opinions; it chose a third possibility, put forward by one of the other three judges (see paragraphs 13-14 above). All things considered, there is no evidence to suggest that its members failed to examine the appeal with due care before taking their decision. One fact, to which the Government rightly drew attention, appears significant in this respect: neither Judge Y, nor any of his four colleagues, requested the adjournment of the deliberations, although they could have done so, in accordance with the practice of the Federal Court, if they had felt the need to acquaint themselves further with the file.
33. In the light of all of these circumstances, Mr Kraska ’ s complaint does not prove to be well-founded. Even though Judge Y ’ s comment is open to criticism, the manner in which the Federal Court dealt with the case does not give rise to any reasonable misgivings.
34. There has therefore been no violation of Article 6 para. 1 (art. 6-1).
1. Holds unanimously that Article 6 para. 1 (art. 6-1) applies in this case;