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You are here: BAILII >> Databases >> European Court of Human Rights >> DIENNET v. FRANCE - 18160/91 [1995] ECHR 28 (26 September 1995)
URL: http://www.bailii.org/eu/cases/ECHR/1995/28.html
Cite as: (1996) 21 EHRR 554, 21 EHRR 554, [1995] ECHR 28

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In the case of Diennet v. France (1),

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 Rules of Court A (2), as a Chamber composed of the

following judges:

Mr R. Ryssdal, President,

Mr R. Bernhardt,

Mr L.-E. Pettiti,

Mr R. Macdonald,

Mr C. Russo,

Mrs E. Palm,

Mr J.M. Morenilla,

Mr L. Wildhaber,

Mr P. Kuris,

and also of Mr H. Petzold, Registrar,

Having deliberated in private on 23 March and 31 August 1995,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 25/1994/472/553. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since its

creation and on the list of the corresponding originating applications

to the Commission.

2. Rules A apply to all cases referred to the Court before the entry

into force of Protocol No. 9 (P9) and thereafter only to cases

concerning States not bound by that Protocol (P9). They correspond to

the Rules that came into force on 1 January 1983, as amended several

times subsequently.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission of

Human Rights ("the Commission") on 7 July 1994, 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. 18160/91) against the French Republic lodged with the Commission

under Article 25 (art. 25) by a French national, Mr Marcel Diennet, on

18 April 1991.

The Commission's request referred to Articles 44 and 48 (art. 44,

art. 48) and to the declaration whereby France recognised the

compulsory jurisdiction of the Court (Article 46) (art. 46). The

object of the request 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 Rules of Court A, 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.-E. Pettiti, the elected judge of French nationality (Article 43

of the Convention) (art. 43), and Mr R. Ryssdal, the President of the

Court (Rule 21 para. 3 (b)). On 18 July 1994, in the presence of the

Registrar, the President drew by lot the names of the other seven

members, namely Mr R. Bernhardt, Mr R. Macdonald, Mr C. Russo,

Mrs E. Palm, Mr J.M. Morenilla, Mr L. Wildhaber and Mr P. Kuris

(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).

4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting

through the Registrar, consulted the Agent of the French Government

("the Government"), the applicant's lawyer and the Delegate of the

Commission on the organisation of the proceedings (Rules 37 para. 1 and

38). Pursuant to the order made in consequence and the extension of

time granted by the President at the Government's request, the

Government's and the applicant's memorials were received at the

registry on 5 December 1994. On 12 January 1995 the Secretary to the

Commission indicated that the Delegate did not wish to reply in

writing. On 22 December 1994 he had supplied the registry with various

documents. The applicant's claim for just satisfaction was received

at the registry on 20 February 1995.

5. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

20 March 1995. At a preparatory meeting held beforehand the Court was

informed that the applicant's lawyer, Ms C. Waquet, was stranded in

Paris as a result of an airline strike. It decided to hold the hearing

at the appointed time nevertheless and to fax a provisional record of

it to Ms Waquet so that she could submit any observations in writing

before the deliberations.

There appeared before the Court:

(a) for the Government

Mrs M. Merlin-Desmartis, administrative court judge,

on secondment to the Legal Affairs Department,

Ministry of Foreign Affairs, Agent,

Mr T.-X. Girardot, special adviser,

Legal Affairs Department,

Ministry of Foreign Affairs, Counsel;

(b) for the Commission

Mr M.A. Nowicki, Delegate.

The Court heard addresses by Mr Nowicki and Mrs Merlin-Desmartis.

6. A copy of Ms Waquet's address was received at the registry by fax

on 21 March 1995. The Delegate of the Commission and the Government

did not reply to it.

AS TO THE FACTS

I. Circumstances of the case

7. Dr Marcel Diennet, a general practitioner living in Paris, was

the object of proceedings for professional misconduct.

8. On 11 March 1984 the Regional Council of the Ile-de-France ordre

des médecins (Medical Association) struck him off the register. Its

reasons for doing so included the following:

"...

The statements made by the doctor against whom proceedings have

been brought amply established the 'method of consultation by

correspondence' introduced by him. Dr Diennet sent patients whom

he could not, or did not wish to, see at his surgery a printed

letter containing a proposal for a consultation by means of a

detailed questionnaire to enable him to make out for each patient

an appropriate prescription for a slimming course.

...

By using this method, Dr Diennet never met his patients, did not

personally make any examination of them and did not monitor or

adjust the treatment prescribed. During his absences from

France, which he admits were numerous, the patients were followed

up by his secretarial staff, a fact which he does not deny.

The conduct of which he stands accused is amply substantiated and

seriously contravenes the provisions of Articles 15, 18, 23, 33

and 36 of the Code of Professional Conduct. Such conduct is

unacceptable on the part of a doctor and bears no relation to the

medical profession.

These offences call for severe punishment.

..."

9. The applicant appealed to the disciplinary section of the

National Council of the ordre des médecins, which on 30 January 1985

ordered that he should be disqualified from practising medicine for

three years instead of being struck off.

10. On an application by Dr Diennet, the Conseil d'Etat quashed that

decision on 15 January 1988 on the ground that there had been an

irregularity in the proceedings which had led to it, as the

disciplinary section of the National Council had ruled that pleadings

filed by the doctor after the time-limit but before the hearing were

inadmissible. The case was remitted to the disciplinary section.

11. On 26 April 1989, after a hearing in private, the disciplinary

section of the National Council again disqualified the applicant from

practising medicine for three years.

12. Dr Diennet appealed on points of law to the Conseil d'Etat. He

argued, in particular, that the decision concerning him had not been

reached in accordance with Article 6 para. 1 (art. 6-1) of the

Convention, as three of the seven members of the disciplinary section

of the National Council, including the rapporteur, had already heard

the case on the occasion of the first decision - a circumstance that

did not satisfy the impartiality requirement of Article 6 para. 1

(art. 6-1) - and the hearing on 26 April 1989 had not been held in

public.

13. On 29 October 1990 the Conseil d'Etat dismissed the appeal in the

following terms:

"...

As to the lawfulness of the impugned decision

Firstly, the provisions of Article 6 para. 1 (art. 6-1) of the

European Convention for the Protection of Human Rights and

Fundamental Freedoms are not applicable to disciplinary

tribunals, which do not hear criminal proceedings and do not

determine civil rights and obligations. Mr Diennet accordingly

cannot challenge the decision appealed against on the grounds

that it contravened the provisions of Article 6 para. 1

(art. 6-1) of the aforementioned Convention relating to the

holding of hearings in public and the impartiality of tribunals.

Secondly, although section 11 of the Law of 31 December 1987

provides that a tribunal to which a case has been remitted by the

Conseil d'Etat must, unless the nature of the tribunal makes it

impossible, be differently constituted from the one that gave the

original decision, the disciplinary section of the ordre des

médecins was, having regard to its nature, entitled, for the

purpose of hearing the case remitted to it by the Conseil d'Etat

acting in its judicial capacity in a decision of 15 January 1988,

to be constituted again as it had been on 30 January 1985, when

it had given its first ruling. The grounds of appeal based on

an infringement of the principle of the impartiality of tribunals

and on the statutory provisions previously cited must therefore

fail.

..."

II. The disciplinary rules governing the medical profession

14. It is compulsory for all doctors entitled to practise their

profession in France to belong to the ordre national des médecins.

This body ensures, among other things, that the principles of morality,

probity and dedication essential to the practice of medicine are upheld

and that all its members fulfil their professional duties and comply

with the rules laid down in the Code of Professional Conduct. It

discharges this function through département councils, regional

councils and the National Council of the ordre (Articles 381 and 382

of the Public Health Code).

A. Procedure

1. Before the professional disciplinary bodies

(a) The regional councils

15. The regional councils exercise disciplinary jurisdiction at first

instance within the ordre des médecins. Cases may be brought before

them by the councils of the départements within their territorial

jurisdiction and individual registered medical practitioners, among

others (Article L. 417 of the Public Health Code).

(b) The disciplinary section of the National Council

16. After each election of a proportion of its members (every two

years) the National Council of the ordre des médecins elects eight of

its thirty-eight members to constitute a disciplinary section - chaired

by a senior member of the Conseil d'Etat - with jurisdiction to hear

appeals (Articles L. 404 to 408 and L. 411 of the Public Health Code).

Substitute members are elected in the same way as full members

(Article 21 of Decree no. 48-1671 of 26 October 1948, as amended,

concerning, inter alia, the functioning of the disciplinary section).

The disciplinary section can only deliberate validly if, in

addition to its chairman, at least four of its members are present.

Where the number of members present is an even number, the youngest

practitioner must withdraw (Article 24, first paragraph, of the Decree

of 26 October 1948, as amended).

Appeals have a suspensive effect (Article L. 411 of the Public

Health Code).

2. In the Conseil d'Etat

17. An appeal on points of law against decisions of the disciplinary

section lies to the Conseil d'Etat (Article 22 of the Decree of

26 October 1948, as amended, and Article L. 411 of the Public Health

Code) "as provided in ordinary administrative law" (Article L. 411 in

fine of the Public Heath Code).

Section 11 - which came into force on 1 January 1989 - of

Law no. 87-1127 of 31 December 1987 reforming administrative

proceedings provides:

"...

If it quashes a decision by an administrative tribunal of last

instance, the Conseil d'Etat may either remit the case to the

same tribunal, which shall, unless the nature of the tribunal

makes it impossible, be differently constituted, or remit the

case to another tribunal of the same type, or determine the

merits of the case itself where the interests of sound

administration of justice warrant it.

Where a second appeal on points of law is brought in a case, the

Conseil d'Etat shall give a final ruling on it."

B. Penalties

18. The following penalties may be imposed on doctors found guilty

of disciplinary offences: a warning; a reprimand; temporary or

permanent disqualification from performing some or all of the medical

duties carried out for or remunerated by the State, départements,

municipalities, public corporations or private corporations promoting

the public interest, or the medical duties carried out pursuant to

welfare legislation; temporary disqualification from practising

medicine (for a maximum of three years); and striking off the register

of the ordre.

The first two penalties also entail loss of the right to be a

member of a département council, a regional council or the National

Council of the ordre for three years; the other penalties entail

permanent loss of that right. A doctor who has been struck off cannot

have his name entered in another register (Article L. 423 of the Public

Health Code).

C. Right of challenge

19. A doctor against whom proceedings are brought may exercise a

right of challenge before a regional council or the National Council,

as laid down in Articles 341 to 355 of the New Code of Civil Procedure

(Article L. 421 of the Public Health Code).

Article 341 of the New Code of Civil Procedure provides that a

judge may be challenged:

"...

1. if he or his spouse has a personal interest in the dispute;

2. if he or his spouse is a creditor, debtor, heir presumptive

or donee of one of the parties;

3. if he or his spouse is a blood relative or a relative by

marriage of one of the parties or of the spouse of one of the

parties up to the fourth degree inclusive;

4. if there have been or are still legal proceedings pending

between him or his spouse and one of the parties or the spouse

of one of the parties;

5. if the case has earlier come before him as a judge or

arbitrator or if he has advised one of the parties;

6. if the judge or his spouse is responsible for administering

the property of one of the parties;

7. if there is a relationship of subordination between the

judge or his spouse and one of the parties or the spouse of one

of the parties;

8. if it is common knowledge that friendship or enmity

subsists between the judge and one of the parties;

..."

D. Holding of proceedings in public

1. The rules applicable to the instant case

20. Article 15, second paragraph, and Article 26, seventh paragraph,

of Decree no. 48-1671 of 26 October 1948, as amended, provided:

"Hearings shall not be held in public and the deliberations shall

remain secret."

The decisions of the disciplinary bodies of the ordre were

recorded in a special register to which third parties did not have

access and they were not published. They were notified to certain

individuals and institutions only.

2. The present rules

21. Those rules were amended by Decree no. 93-181 of 5 February 1993.

Hearings before a body of the ordre sitting to determine

disciplinary charges are now held in public. However, the chairman of

the body in question may, of his own motion or on an application by one

of the parties or by the person whose complaint has led to the case

being brought before a regional council, exclude the public from all

or part of the hearing in the interests of public order or where

respect for private life or medical confidentiality so justifies

(Articles 13, 15 and 26 of the Decree of 26 October 1948, as amended

by the Decree of 5 February 1993).

Decisions are now made public, but the bodies in question may

decide not to include in the certified copies any details - such as

surnames - which might be incompatible with respect for private life

or medical confidentiality (Articles 13 and 28 of the Decree of

26 October 1948, as amended by the Decree of 5 February 1993).

PROCEEDINGS BEFORE THE COMMISSION

22. Dr Diennet applied to the Commission on 18 April 1991. He

alleged a violation of the right to a hearing in public and by an

impartial tribunal, guaranteed in Article 6 para. 1 (art. 6-1) of the

Convention.

23. The Second Chamber of the Commission declared the application

(no. 18160/91) admissible on 2 December 1992 and, under Article 20

para. 4 (art. 20-4) of the Convention, subsequently relinquished

jurisdiction in favour of the plenary Commission.

In its report of 5 April 1994 (Article 31) (art. 31), it

expressed the unanimous opinion that there had been a violation of the

right to a hearing in public and, by fourteen votes to nine, the

opinion that there had not been a violation of the right to an

impartial tribunal. The full text of the Commission's opinion and of

the partly dissenting opinion contained in the report is reproduced as

an annex to this judgment (1).

_______________

1. Note by the Registrar: for practical reasons this annex will appear

only with the printed version of the judgment (volume 325-A of

Series A of the Publications of the Court), but a copy of the

Commission's report is obtainable from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT

24. In their memorial the Government asked the Court "to reject

Mr Diennet's application".

25. The applicant asked the Court to

"hold that in the proceedings which ended with the Conseil

d'Etat's judgment of 9 October 1990 there was a twofold violation

by France of Article 6 (art. 6) of the European Convention on

Human Rights, firstly in that the disciplinary tribunal did not

hear his case in public, and secondly in that the disciplinary

tribunal was not constituted impartially within the meaning of

the said Article 6 (art. 6)".

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE

CONVENTION

26. Dr Diennet complained that he had not had a public hearing by an

impartial tribunal. He relied on Article 6 para. 1 (art. 6-1) of the

Convention, which provides:

"In the determination of his civil rights and obligations or of

any criminal charge against him, everyone is entitled to a fair

and public hearing within a reasonable time by an independent and

impartial tribunal established by law. Judgment shall be

pronounced publicly but the press and public may be excluded from

all or part of the trial in the interests of morals, public order

or national security in a democratic society, where the interests

of juveniles or the protection of the private life of the parties

so require, or to the extent strictly necessary in the opinion

of the court in special circumstances where publicity would

prejudice the interests of justice."

A. Applicability of Article 6 para. 1 (art. 6-1)

27. It is clear from the Court's settled case-law that disciplinary

proceedings in which, as in the instant case, the right to continue to

practise medicine as a private practitioner is at stake give rise to

"contestations (disputes) over civil rights" within the meaning of

Article 6 para. 1 (art. 6-1) (see, among other authorities, the König

v. Germany judgment of 28 June 1978, Series A no. 27, pp. 29-32,

paras. 87-95; the Le Compte, Van Leuven and De Meyere v. Belgium

judgment of 23 June 1981, Series A no. 43, pp. 19-23, paras. 41-51; and

the Albert and Le Compte v. Belgium judgment of 10 February 1983,

Series A no. 58, pp. 14-16, paras. 25-29). The applicability of

Article 6 para. 1 (art. 6-1) to the circumstances of this case, which

was in issue before the Commission but was not disputed before the

Court, is therefore not in doubt.

28. The Court considers it unnecessary to determine whether, as the

applicant maintained, there was any "criminal charge" against him

within the meaning of Article 6 para. 1 (art. 6-1) of the Convention:

as in the König, Le Compte, Van Leuven and De Meyere, and Albert and

Le Compte cases (judgments previously cited, p. 33, para. 96,

pp. 23-24, para. 53, and p. 17, para. 30, respectively), those of the

Article 6 para. 1 (art. 6-1) rules which the applicant alleged to have

been breached apply to both civil and criminal matters.

B. Compliance with Article 6 para. 1 (art. 6-1)

29. Dr Diennet submitted that there had been a breach of Article 6

para. 1 (art. 6-1) both because the proceedings before the professional

disciplinary bodies had not been public and because one of those bodies

had not been impartial.

1. Holding of proceedings in public

30. The applicant complained that the proceedings before the

Ile-de-France Regional Council and the disciplinary section of the

National Council of the ordre des médecins had not been held in public.

31. The Government did not dispute the fact. They recognised,

moreover, that the applicant could not be regarded as having tacitly

waived a public hearing by not seeking one, inasmuch as the French

rules expressly excluded one (see paragraph 20 above and, among other

authorities and mutatis mutandis, the H. v. Belgium judgment of

30 November 1987, Series A no. 127-B, p. 36, para. 54). They

considered, nevertheless, that the Conseil d'Etat had compensated for

that shortcoming by sitting in public on 15 January 1988 and

15 October 1990. When sitting in disciplinary cases, the Conseil

d'Etat had, they continued, powers of review that went beyond questions

of law alone since it verified the accuracy of the facts which formed

the basis of the charges and the correctness of the legal

classification of those facts and also, where appropriate, reviewed the

assessment made by the tribunal of fact, by checking that evidence had

not been misinterpreted; it had proceeded in that manner in the instant

case.

In the alternative, the Government argued that, at all events,

the misconduct of which the applicant had been accused related directly

to practice of the medical profession and therefore came under the

exceptions provided for in Article 6 para. 1 (art. 6-1). The

disciplinary bodies of the ordre were under a duty to verify the

factual accuracy of the charges against the applicant, against whom

proceedings had been taken for having issued medical prescriptions for

the treatment of obesity without examining his patients or following

up their treatment. Specific examples therefore had to be cited during

the proceedings, so that inevitably, if these had been held in public,

professional confidentiality would have been jeopardised and patients'

private lives intruded upon.

32. The Commission, referring to the Court's case-law on the matter,

found that there had been a violation of the right to public

proceedings.

33. The Court reiterates that the holding of court hearings in public

constitutes a fundamental principle enshrined in paragraph 1 of

Article 6 (art. 6-1) (see, as the most recent authority, the

Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A

no. 263, p. 19, para. 58). This public character protects litigants

against the administration of justice in secret with no public

scrutiny; it is also one of the means whereby confidence in the courts

can be maintained. By rendering the administration of justice

transparent, publicity contributes to the achievement of the aim of

Article 6 para. 1 (art. 6-1), namely a fair trial, the guarantee of

which is one of the fundamental principles of any democratic society,

within the meaning of the Convention (see, for example, the Sutter v.

Switzerland judgment of 22 February 1984, Series A no. 74, p. 12,

para. 26).

Admittedly, the Convention does not make this principle an

absolute one, since by the very terms of Article 6 para. 1 (art. 6-1),

"... the press and public may be excluded from all or part of the trial

in the interests of morals ..., where the ... protection of the private

life of the parties so require[s], or to the extent strictly necessary

in the opinion of the court in special circumstances where publicity

would prejudice the interests of justice".

34. The Court takes account of several factors.

Firstly, the Government did not dispute that the hearings before

the disciplinary bodies of the ordre des médecins had not been held in

public.

Secondly, where the Conseil d'Etat hears appeals on points of law

from decisions of the disciplinary section of the National Council of

the ordre des médecins, it cannot be regarded as a "judicial body that

has full jurisdiction", in particular because it does not have the

power to assess whether the penalty was proportionate to the

misconduct; the fact that hearings before it are held in public is

therefore not sufficient to remedy the defect found to exist at the

stage of the disciplinary proceedings (see, inter alia and mutatis

mutandis, the Albert and Le Compte judgment previously cited, p. 16,

para. 29, and p. 19, para. 36).

Lastly, while the need to protect professional confidentiality

and the private lives of patients may justify holding proceedings in

camera, such an occurrence must be strictly required by the

circumstances. In the instant case, however, as the applicant and the

Commission rightly pointed out, the proceedings were to deal only with

the "method of consultation by correspondence" adopted by Dr Diennet

(see paragraph 8 above). There was no good reason to suppose that

either the tangible results of that method in respect of a given

patient or any confidences that Dr Diennet might have picked up in the

course of practising his profession would be mentioned. If it had

become apparent during the hearing that there was a risk of a breach

of professional confidentiality or an intrusion on private life, the

tribunal could have ordered that the hearing should continue in camera.

At all events, the public was excluded because of the automatic prior

application of the provisions of the Decree of 26 October 1948 (see

paragraph 20 above). That decree was amended after the events in the

instant case had occurred; with a number of strictly defined

exceptions, hearings before a body of the ordre in disciplinary

proceedings are now held in public (see paragraph 21 above).

35. In sum, there has been a breach of Article 6 para. 1 (art. 6-1)

in that the applicant did not receive a "public" hearing before the

Ile-de-France Regional Council and the disciplinary section of the

National Council of the ordre des médecins.

2. Impartiality

36. The applicant did not contest the personal impartiality of the

members of the disciplinary section of the National Council of the

ordre des médecins as constituted when his case was referred back to

it by the Court of Cassation.

On the other hand, he did state that the combination of several

factors objectively gave rise to very serious doubts about the

impartiality of the section as such: not only had three of its seven

members - including the rapporteur - heard the case on appeal but the

second decision had been identical with the first one, except for the

addition of a paragraph in which an amnesty that had been enacted in

the meantime was taken into account.

He maintained that the three members in question could have been

replaced by substitutes. In this connection, he could not be blamed

for not having challenged the three members, as, on the one hand, such

a procedure - which was exceptional in French law - would have been

bound to fail and, on the other hand, the defect relating to the

reasons given for the disciplinary section's second decision did not

become apparent to him until the decision was served on him, when he

was able to see that it was identical with the first decision.

37. The Government and the Commission referred to the Ringeisen v.

Austria judgment of 16 July 1971, according to which "... it cannot be

stated as a general rule resulting from the obligation to be impartial

that a superior court which sets aside an administrative or judicial

decision is bound to send the case back to a different jurisdictional

authority or to a differently composed branch of that authority"

(Series A no. 13, p. 40, para. 97). The Government said that

section 11 of the Law of 31 December 1987 reforming administrative

proceedings expressly provided that if the Conseil d'Etat remitted a

case to the same tribunal, the latter had to be differently constituted

unless the nature of the tribunal made it impossible (see paragraph 17

above); and as it was the one and only body of its kind, the nature of

the disciplinary section of the National Council of the ordre des

médecins did make it impossible.

As to the complaint about the reasoning, the Government pointed

out that the first decision had been quashed only on account of a

procedural irregularity and no new facts had been relied on after the

case had been remitted, so that the similarity of the texts of the two

decisions, even taken in conjunction with the membership of the

disciplinary section as constituted on the second occasion, likewise

did not justify any objective doubts as to the impartiality of the

disciplinary section.

38. In the Court's view, no ground for legitimate suspicion can be

discerned in the fact that three of the seven members of the

disciplinary section had taken part in the first decision (see the

Ringeisen judgment previously cited, loc. cit., and paragraph 12

above). Furthermore, even if the second decision had been differently

worded, it would necessarily have had the same basis, because there

were no new factors. The applicant's fears therefore cannot be

regarded as having been objectively justified.

39. There has accordingly been no breach of Article 6 para. 1

(art. 6-1) in this respect.

II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION

40. Article 50 (art. 50) of the Convention provides:

"If the Court finds that a decision or a measure taken by a legal

authority or any other authority of a High Contracting Party is

completely or partially in conflict with the obligations arising

from the ... Convention, and if the internal law of the said

Party allows only partial reparation to be made for the

consequences of this decision or measure, the decision of the

Court shall, if necessary, afford just satisfaction to the

injured party."

A. Damage

41. The applicant sought, firstly, 500,000 French francs (FRF) in

respect of non-pecuniary damage and FRF 500,000 in compensation for the

"harassment" that he had suffered as a consequence of the disciplinary

penalty that had been imposed on him.

42. The Delegate of the Commission left the matter to the Court's

discretion. However, he pointed out that the applicant's claim was

based on the assumption that there had been a double breach of

Article 6 para. 1 (art. 6-1), so that it would be appropriate not to

award the whole of the amount sought if the Court agreed with the

Commission's opinion.

43. Like the Government, the Court considers that the finding of a

breach of Article 6 para. 1 (art. 6-1) constitutes in itself sufficient

just satisfaction.

B. Costs and expenses

44. Dr Diennet also sought FRF 47,000 in respect of the costs and

expenses incurred before the French disciplinary and judicial bodies

and FRF 30,000, plus FRF 3,720 in value added tax (VAT), in respect of

those relating to the proceedings before the Convention institutions.

45. The Government left the matter to the Court's discretion. The

Delegate of the Commission did not express a view.

46. Taking into account the fact that it has accepted only one of the

complaints and making its assessment on an equitable basis, the Court

awards the applicant FRF 20,000 including VAT.

FOR THESE REASONS, THE COURT

1. Holds unanimously that Article 6 para. 1 (art. 6-1) of the

Convention applies in the instant case;

2. Holds unanimously that there has been a breach of Article 6

para. 1 (art. 6-1) of the Convention in that the applicant did

not receive a public hearing;

3. Holds by eight votes to one that there has been no breach of the

same Article (art. 6-1) in respect of the applicant's other

complaint;

4. Holds unanimously that this judgment constitutes in itself

sufficient just satisfaction in respect of the alleged damage;

5. Holds unanimously that the respondent State is to pay the

applicant, within three months, 20,000 (twenty thousand) French

francs in respect of costs and expenses;

6. Dismisses unanimously the remainder of the claim for just

satisfaction.

Done in English and in French, and delivered at a public hearing

in the Human Rights Building, Strasbourg, on 26 September 1995.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 53 para. 2 of Rules of Court A, the partly

dissenting opinion of Mr Morenilla is annexed to this judgment.

Initialled: R. R.

Initialled: H. P.

PARTLY DISSENTING OPINION OF JUDGE MORENILLA

(Translation)

1. I regret that I must disagree with the majority as regards the

applicant's complaint - based on Article 6 para. 1 (art. 6-1) of the

Convention - concerning the infringement of his right to an impartial

tribunal. In my view, the facts of the case disclose a breach of that

Article (art. 6-1).

2. The majority (paragraph 38 of the judgment) discern no ground for

legitimate suspicion in the fact that three of the seven members of the

disciplinary section of the National Council of the ordre des médecins,

which gave the final ruling on Dr Diennet's professional conduct and

imposed the penalty of disqualification from practising medicine for

three years, had taken part in the same section's earlier decision in

the same case.

3. Such a conclusion is, in my opinion, contrary to the concept of

"objective" impartiality combined with the "doctrine of appearances"

that has been developed by the Court, in particular in the Piersack v.

Belgium judgment of 1 October 1982 (Series A no. 53, pp. 13-16,

paras. 28-32), the De Cubber v. Belgium judgment of 26 October 1984

(Series A no. 86, pp. 14-16, paras. 25-30) and the Hauschildt v.

Denmark judgment of 24 May 1989 (Series A no. 154, pp. 21-22,

paras. 46-52) (see Marc-André Eissen, Jurisprudence relative à

l'article 6 (art. 6) de la Convention, European Court of Human Rights,

1985, pp. 28-30).

4. The circumstances described justified the applicant's fears as

to the impartiality of the tribunal which was to give the final ruling

on his professional conduct. I reach this conclusion whether the

circumstances are analysed from the subjective point of view of the

tribunal members' attitude to a case they had already considered and

decided earlier or whether they are looked at from an objective point

of view, namely that the applicant's fears were justified in view of

"the appearances" of partiality on the part of a body three of whose

seven members had already tried and convicted him (see, among other

authorities, the De Cubber judgment, pp. 13-14, para. 24, and the

Hauschildt judgment, p. 21, para. 46, both previously cited).

5. The fact that the second decision was almost a literal

reproduction of the first one - which can be explained by the fact that

the rapporteur of the disciplinary section as constituted to rehear the

case had been a member of the section as originally constituted - makes

this defect all the more obvious. It is therefore not a question of

these three members of the section possibly being malevolent towards

Dr Diennet - who has never argued that they were - but of their

attitude to the case and their personal conviction as to the breaches

of professional ethics of which the applicant was accused.

6. From the point of view of an objective test, the circumstances

described gave reason to doubt whether those three members could be

impartial in retrying Dr Diennet in respect of the same facts. They

should have stood down, as the applicant was entitled to have fears as

to their impartiality in view of their detailed knowledge of the case

and the decision they had already given at an earlier stage. The

impartiality of the tribunal could well appear questionable and "this

fear could be held to be objectively justified" (see the Hauschildt

judgment previously cited, p. 21, paras. 48-49, and the Thorgeir

Thorgeirson v. Iceland judgment of 25 June 1992, Series A no. 239,

p. 23, para. 51).

7. The majority consider that the applicant's fears cannot be

regarded as having been "objectively justified" and they conclude that

there has been no breach. They refer to the case of Ringeisen v.

Austria (judgment of 16 July 1971, Series A no. 13), whose facts were,

however, very different from those in the instant case. The

proceedings taken by Mr Ringeisen were intended to secure approval for

a transfer of ownership of farmland and were therefore purely civil in

nature, whereas Dr Diennet had proceedings brought against him for

breaches of the medical profession's code of ethics. The Court is thus

extending - without explanation - to disciplinary bodies a trend that

is fairly recent in its case-law (see the following judgments: Fey v.

Austria of 24 February 1993, Series A no. 255-A, p. 12, para. 30;

Padovani v. Italy of 26 February 1993, Series A no. 257-B, p. 20,

para. 27; Nortier v. the Netherlands of 24 August 1993, Series A

no. 267, pp. 15-16, paras. 31-37, with my concurring opinion,

pp. 18-19; and Saraiva de Carvalho v. Portugal of 22 April 1994,

Series A no. 286-B) and is difficult enough as it is to reconcile with

the earlier case-law as set forth in the Piersack, De Cubber,

Hauschildt and Thorgeir Thorgeirson judgments previously cited. Yet

this case-law concerned only criminal courts which at the pre-trial

stage of a case ordered that a suspect should be held in detention and

subsequently - in most of the cases as a result of the chance

constitution of the courts or changes in the judicial staff - had to

rule on the relevant accused's guilt.

8. The present case, however, has nothing to do with the taking of

pre-trial measures at an earlier stage of the proceedings but concerns

decisions already taken on the applicant's guilt in disciplinary

proceedings by judges required to rehear the case. In my view, this

interpretation of Article 6 para. 1 (art. 6-1) of the Convention in

respect of the right to an impartial tribunal makes our case-law on the

assessment of this vital component of a fair trial more uncertain.



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