 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
European Court of Human Rights |
||
|
You are here: BAILII >> Databases >> European Court of Human Rights >> ALBERT AND LE COMPTE v. BELGIUM (ARTICLE 50) - 7299/75;7496/76 [1983] ECHR 10 (24 October 1983) URL: http://www.bailii.org/eu/cases/ECHR/1983/10.html Cite as: (1991) 13 EHRR 415, [1983] ECHR 10 |
||
[New search] [Contents list] [Help]
In the case of Albert and Le Compte,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of the Rules of Court (*), as a Chamber composed of the
following judges:
_______________
(*) Note by the registry: In the version of the Rules applicable when
proceedings were instituted. A revised version of the Rules entered
into force on 1 January 1983, but only in respect of cases referred to
the Court after that date.
_______________
Mr. G. WIARDA, President,
Mr. J. CREMONA,
Mr. W. GANSHOF VAN DER MEERSCH,
Mr. D. EVRIGENIS,
Mr. J. PINHEIRO FARINHA,
Sir Vincent EVANS,
Mr. R. MACDONALD,
and also Mr. M.-A. EISSEN, Registrar, and Mr. H. PETZOLD, Deputy
Registrar,
Having deliberated in private on 23 September 1983,
Delivers the following judgment, which was adopted on that date, on
the application in the present case of Article 50 (art. 50) of the
Convention:
PROCEDURE AND FACTS
1. The present case was referred to the Court on 12 March 1982 by
the European Commission of Human Rights ("the Commission"). The case
originated in two applications (nos. 7299/75 and 7496/76) against
Belgium lodged with the Commission in 1975 and 1976 by two Belgian
nationals, Dr. Alfred Albert and Dr. Herman Le Compte.
2. On 28 May 1982, the Chamber constituted to examine the case
relinquished jurisdiction in favour of the plenary Court (Rule 48 of
the Rules of Court). By a judgment of 10 February 1983, the latter
held that there had been a breach of Article 6 para. 1 (art. 6-1) of the
Convention in that the Appeals Council of the Ordre des médecins
(Medical Association) had not heard the applicants' cases (in French:
"causes") publicly and had not pronounced its judgment publicly. It
found, on the other hand, that there had been no violation of that
Article (art. 6-1) as regards the applicants' other complaints, and no
violation of Articles 3 and 11 (art. 3, art. 11) with respect to
Dr. Le Compte (Series A no. 58, paras. 21-22 and 31-44 of the reasons and
points 1, 3 and 4 of the operative provisions, pp. 13 and 17-22).
The only outstanding matter to be settled is the question of the
application of Article 50 (art. 50) in the present case. Accordingly,
as regards the facts, the Court will confine itself here to giving the
pertinent details; for further particulars, reference should be made
to paragraphs 8 to 17 of the above-mentioned judgment
(ibid., pp. 9-11).
3. At the hearings of 27 September 1982, counsel for
Dr. Le Compte had asked the Court, in the event of its finding a
breach of the Convention, to afford his client just satisfaction under
Article 50 (art. 50). He had, however, expressed the view that the
question was not yet ready for decision. The Commission's Delegates,
for their part, had requested the Court to defer ruling on this point
in the absence of any indication from Dr. Albert or his counsel.
In its judgment of 10 February 1983, the Court reserved the question
and referred it back to the Chamber under Rule 50 para. 4 of the Rules of
Court (ibid., paras. 45-46 of the reasons and point 5 of the operative
provisions, p. 22). On the same day, the Chamber invited the
Commission to submit, within the coming two months, its written
observations, including notification of any friendly settlement at
which the Government of the Kingdom of Belgium ("the Government") and
the applicants might have arrived (Series A no. 58, p. 29).
4. On 12 April 1983, the President granted an extension of this
time-limit until 10 May.
On 19 May, the Secretary to the Commission, acting on the Delegates'
instructions, transmitted to the Registrar a copy of a note drafted by
Dr. Le Compte's lawyer. The note, which was dated 28 April 1983 and
referred to a similar document filed in the case of Le Compte,
Van Leuven and De Meyere (judgment of 18 October 1982,
Series A no. 54, pp. 5-6, para. 4), contained two series of claims.
(a) First, Dr. Le Compte sought the adoption by the Government of
measures providing partial reparation in the form of
(i) "the complete and effective expunction of all the sanctions
imposed on him, both disciplinary and penal";
(ii) the withdrawal of a circular issued by the Minister of Justice,
prohibiting all dispensing chemists in Belgium from making up
prescriptions written by the applicant on and after 26 December 1975.
(b) Second, Dr. Le Compte claimed
(i) "as compensation for the prejudice suffered", an award of
10,000,000 BF per annum since the striking of his name from the
register of the Ordre;
(ii) reimbursement of the costs incurred before the Court of Cassation
and the Convention organs, to be calculated by applying "the same
criteria and scales as those utilised in the European Court's judgment
of 18 October 1982, the amounts remaining the same" (Series A no. 54,
pp. 9 and 11, paras. 20, 23 and 25).
The Delegates, for their part, confined themselves to referring to
their memorial of 30 March 1982 in the case of Le Compte, Van Leuven
and De Meyere and to the judgment of 18 October 1982 in that case.
They left it to the Court's discretion to afford just satisfaction, on
the basis of those documents.
5. By Order of 20 May 1983, the President directed that the Agent
of the Government should have until 20 June 1983 to submit his
observations. At the Agent's request, he extended this time-limit
until 20 July.
The Government's reply was received at the registry on 29 June.
6. On 1 June 1983, the Deputy Secretary to the Commission
informed the Registrar that Dr. Albert was claiming no more than a
token award of one Belgian franc for non-pecuniary damage.
AS TO THE LAW
7. Article 50 (art. 50) of the Convention, the applicability of
which was not contested in the present case, reads as follows:
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising from
the ... Convention, and if the internal law of the said Party allows
only partial reparation to be made for the consequences of this
decision or measure, the decision of the Court shall, if necessary,
afford just satisfaction to the injured party."
I. Dr. Albert's claim
8. With respect to the non-pecuniary damage alleged by
Dr. Albert, the Court considers that, by finding a violation of
Article 6 para. 1 (art. 6-1), its judgment of 10 February 1983 has
already furnished sufficient just satisfaction for the purposes of
Article 50 (art. 50) (see, mutatis mutandis, the above-mentioned
Le Compte, Van Leuven and De Meyere judgment, Series A no. 54,
p. 8, para. 16).
II. Dr. Le Compte's claims
9. As regards Dr. Le Compte's first series of claims (see
paragraph 4 (a) above), the Court would recall that it is not
empowered under the Convention to direct the Belgian State - even
supposing that the latter could itself comply with such a direction -
to annul the disciplinary sanctions imposed on the applicant or the
sentences passed on him in criminal proceedings (ibid., p. 7, para. 13).
Furthermore, the disciplinary sanctions, which were the outcome of
proceedings found by the Court not to have complied with one of the
rules of Article 6 para. 1 (art. 6-1) of the Convention, cannot, on that
account alone, be regarded as the consequences of that breach. As for
the criminal sentences, there is no connection whatsoever between them
and the violation of the Convention.
Similar remarks apply to the Minister of Justice's circular
prohibiting all dispensing chemists from making up Dr. Le Compte's
prescriptions (see paragraph 4 (a) (ii) above).
10. As for the applicant's second series of claims
(see paragraph 4 (b) above), the Court considers it proper to
distinguish here, as in the case of Le Compte, Van Leuven and
De Meyere (see the above-mentioned judgment, ibid., p. 7, para. 14),
between damage caused by a violation of the Convention and the costs
incurred by the applicant.
1. Damage
11. The Court concurs with the view of the Commission's Delegates
- which was shared by the Government - that there was no causal link
between the violation found in the judgment of 10 February 1983 and
the damage occasioned by the withdrawal of the right to practise
medicine.
In finding that during the disciplinary proceedings the applicant's
case had not been heard publicly, as was required by Article 6 para. 1
(art. 6-1) of the Convention, the Court in no way intended to hold
that the facts giving rise to the sanction in question had not been
established or did not justify the measure so taken. On the contrary,
it rejected the applicant's claim that the Appeals Council of the
Ordre des médecins did not constitute an independent and impartial
tribunal established by law. Accordingly, no causal link has been
shown to exist between the breach of Article 6 para. 1 (art. 6-1), on the
one hand, and the disciplinary sanction and its consequences for the
applicant, on the other. Moreover, the applicant has not alleged that
he suffered any damage, pecuniary or non-pecuniary, specifically as a
result of the violation of Article 6 para. 1 (art. 6-1) found in the
present case.
2. Costs
12. Dr. Le Compte sought a sum identical to that awarded in the
judgment of 18 October 1982 (see paragraph 4 (b) (ii) above), namely
77,000 BF.
This request, whose merits the Commission's Delegates left it to the
Court to assess and which the Government "did not think they should
contest", is granted by the Court. It has no cause to doubt that the
applicant's claims satisfy the various criteria which emerge from its
case-law on the subject, as regards both the purpose for which the
costs in question were incurred and the requirements that they be
actually incurred, necessarily incurred and reasonable as to quantum
(see, as the most recent authority, the Zimmermann and Steiner
judgment of 13 July 1983, Series A no. 66, p. 14, para. 36).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that the Kingdom of Belgium is to pay to Dr. Le Compte
seventy-seven thousand Belgian francs (77,000 BF) in respect of costs
and expenses;
2. Rejects the remainder of the claims for just satisfaction.
Done in English and in French, the French text being authentic, at the
Human Rights Building, Strasbourg, this twenty-fourth day of October,
one thousand nine hundred and eighty-three.
Signed: Gérard WIARDA
President
Signed: Marc-André EISSEN
Registrar