European Court of Human Rights

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 34 of the above-mentioned judgment (ibid., pp. 7-17).

In its judgment of 23 June 1981, the Court reserved the whole of the question of the application of Article 50 (art. 50) and referred it back to the Chamber under Rule 50 § 4 of the Rules of Court. On the same day, the Chamber invited the Commission to submit, within the next two months, its written observations on the said question, including notification of any friendly settlement at which the Government and the applicants might have arrived (ibid., p. 45).

On 15 December, the Secretary to the Commission informed the Registrar that the Agent of the Government found it impossible to put forward the slightest proposal on the Article 50 (art. 50) issue. On the instructions of the Delegates - who reserved the right to submit observations at a later date -, the Secretary transmitted to the Court a copy of a note drafted by the applicants’ lawyer. The note, dated 18 August 1981, may be summarised as follows:

(a) Claims common to the three applicants

The applicants sought an undertaking from the Government to take measures providing partial reparation in the shape of

(i) the complete and effective expunction of "all the disciplinary and penal sanctions" of which they complained;

(ii) the reimbursement of the legal expenses and fines, the former including the following fees of lawyers practising before the Court of Cassation:

- 25,000 BF for Dr. Le Compte;

- 11,000 BF for Dr. Van Leuven;

- 11,000 BF for Dr. De Meyere.

(b) Claims particular to each applicant

Dr. Le Compte sought

(i) as his principal claim, a provisional award of one Belgian franc, pending the outcome of his second application to the Commission (no. 7496/76, - judgment of 23 June 1981, Series A no. 43, p. 10, § 13 in fine), referred to the Court on 12 March 1982 (the case of Albert and Le Compte);

(ii) in the alternative, an award

- of "a fair proportion" of the 732,608 BF he had paid in legal costs;

- 30,000 BF for travel and subsistence expenses and by way of attendance allowances;

- 20,000,000 BF for pecuniary and non-pecuniary loss.

Dr. Van Leuven claimed

- 50,000 BF for legal costs;

- 30,000 BF for travel and subsistence expenses and by way of attendance allowances;

- 15,000,000 BF for pecuniary and non-pecuniary loss.

Dr. De Meyere claimed

- 60,000 BF for loss of income during the fifteen days’ suspension of his right to practise medicine;

- 50,000 BF for legal costs;

- such sum as the Court deemed fit for non-pecuniary loss.

The Government filed their memorial on 10 February and indicated, on 5 March, that they did not insist that hearings be held.

The Government’s reply was received at the registry on 17 May.

FINAL SUBMISSIONS MADE TO THE COURT

"hold that the request for the application of Article 50 (art. 50) in the present case is unfounded".

AS TO THE LAW

I. THE APPLICABILITY OF ARTICLE 50 (ART. 50)

"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 present 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."

II. THE APPLICATION OF ARTICLE 50 (ART. 50)

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 § 1 (art. 6-1) of the Convention, cannot, on that account alone, be regarded as the consequence of that breach. As for the criminal sentences, there is no connection whatsoever between them and the violation of the Convention (see paragraph 15 below).

1. Pecuniary and non-pecuniary loss

In finding that during the disciplinary proceedings the applicants’ case had not been heard publicly, as was required by Article 6 § 1 (art. 6-1) of the Convention, the Court in no way intended to hold that the facts giving rise to the sanctions in question had not been established or did not justify the measures so taken. On the contrary, it rejected the applicants’ claim that the Appeals Council of the Ordre des médecins (Medical Association) 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 § 1 (art. 6-1), on the one hand, and the disciplinary sanctions and their consequences for the applicants, on the other.

2. Costs

However, costs and expenses will not be awarded under Article 50 (art. 50) unless they were incurred by the applicants in order to try to prevent the violation found by the Court or to obtain redress therefore (see the above-mentioned Neumeister judgment, Series A no. 17, pp. 20-21, § 43). Furthermore, it has to be established that the costs and expenses were actually incurred, were necessarily incurred and were also reasonable as to quantum (see, inter alia, the above-mentioned Sunday Times judgment, Series A no. 38, pp. 13-18, §§ 23-42). The costs incurred in Belgium as well as in Strasbourg have to be scrutinised for compliance with these criteria.

(a) Belgian costs

The fines - which were apparently imposed only on Dr. Le Compte (see the judgment of 23 June 1981, Series A no. 43, pp. 8 and 10, §§ 12 and 13) - have to be excluded at the outset. They were no more than a consequence of Dr. Le Compte’s failure to comply with the order suspending his right to practise - a measure whose justification is not called into question by the fact that the disciplinary proceedings were not conducted in public (see paragraph 15 above) - and were imposed at the conclusion of criminal proceedings whose conformity with the requirements of the Convention was not contested.

(i) Costs referable to the proceedings before the Provincial Councils and Appeals Council of the Ordre des médecins

(ii) Costs referable to the proceedings before the Court of Cassation

To the above should be added legal expenses (fee for service of notice of the appeal, registration fee, fee for copying the judgment) which may be evaluated at 6,000 BF for each applicant.

(b) Strasbourg costs

The Government did not dispute that this expenditure was actually incurred. They confined themselves to arguing, firstly, that the items in question had no connection with the one and only violation of Article 6 § 1 (art. 6-1) found by the Court and, secondly, that for the applicants the positive results of the judgment of 23 June 1981 were very limited when compared with the totality of their claims. At the very least, the Government submitted, there should be no reimbursement of moneys expended by the applicants in advancing complaints held in that judgment to be unfounded.

The proceedings before the Strasbourg institutions resulted in a finding by the Court of a violation of Article 6 (art. 6). It cannot therefore be denied that there was a connection between the costs incurred during those proceedings and the finding in question. However, the applicants’ claims were accepted only in part. The Court did not simply reject a number of the arguments put forward; it was also led to find that most of the complaints that had been made were unfounded (cf. the above- mentioned Sunday Times judgment, Series A no. 38, pp. 14-15, §§ 27-28). The Court, deciding on an equitable basis as is provided for by Article 50 (art. 50), accordingly considers that the applicants’ legal costs before the Convention institutions should be reimbursed to them only to the extent hereinafter specified.

(i) Legal costs

In their memorial, the Commission’s Delegates left to the Court’s discretion the amount to be awarded; however, they suggested that it should be higher than the figure to which the applicants would have been entitled were one to follow the scale adopted by the Commission for the purposes of free legal aid.

On the other hand, the amounts claimed include fees and legal expenses referable to the disciplinary proceedings before the Provincial Councils and the Appeals Council of the Ordre des médecins (see paragraph 19 above). The sum of 732,608 BF mentioned by Dr. Le Compte (see paragraph 22 above) also concerns criminal proceedings before Belgian courts and even proceedings relating not to the present case but rather to application no. 7496/76 of 6 May 1976, which will be the subject of a future ruling by the Court (see paragraph 4 (b) (i) above). As for the sum of 50,000 BF referred to by Dr. Van Leuven and Dr. De Meyere, it covers the whole of their expenses both before the disciplinary organs and before the Commission and the Court.

The applicants have furnished no evidence to show that there was any difference between the amount of legal costs which each of them incurred in Strasbourg. Accordingly, the same figure should be adopted in each case; making an assessment on an equitable basis as is required by Article 50 (art. 50), the Court fixes the figure at 25,000 BF.

(ii) Travel and subsistence expenses

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that the Kingdom of Belgium is to pay to the applicants, in respect of their costs and expenses, the following sums:

- seventy-seven thousand Belgian francs (77,000 BF) to Dr. Le Compte;

- sixty-three thousand Belgian francs (63,000 BF) to Dr. Van Leuven;

- forty-two thousand Belgian francs (42,000 BF) to Dr. De Meyere;

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 eighteenth day of October, one thousand nine hundred and eighty-two.

For the President

Denise Bindschedler-Robert

Judge

Marc-André eissen

Registrar