EHRM, 18-10-2011, nr. 10247/09

The Government submitted that the interference had been prescribed by law, namely by Article 52 of the Code of Medical Ethics, and that it had pursued the legitimate aim of protecting the reputation and rights of others.

They further submitted that the ‘interference’ complained of had corresponded to a ‘pressing social need’, that it had been proportionate to the legitimate aim pursued and that the reasons given by the national authorities to justify it had been relevant and sufficient (see Skałka v. Poland, no. 43425/98, § 35, 27 May 2003). The medical courts had established that the applicant had openly and persistently expressed negative opinions about the chief physician's qualifications in the presence of other doctors and medical staff, and even in the presence of patients and their families, which constituted an offence under Article 52 § 2 of the Code of Medical Ethics.

They further argued that medical practitioners enjoyed a special relationship with patients based on trust, confidentiality and confidence that the former would use all available knowledge and means to ensure the well-being of the latter. That could imply a need to preserve solidarity among members of the profession (see Frankowicz v. Poland, no. 53025/99, § 49, 16 December 2008).

The Government emphasised that the applicant had expressed negative opinions about the head physician's qualifications on account of the conflict between them. That conflict had deprived the applicant's statements of objectivity. Her views on her superior's professional performance could not therefore be seen as a reasonable critical assessment, from a medical point of view, of the treatment received by the patients from another doctor, but rather as gratuitous personal attacks.

The Government argued that during the disciplinary proceedings the medical courts had examined numerous pieces of evidence submitted to them.

The Government concluded that the domestic authorities, when justifying the interference concerned in the present case, had relied on grounds which were both relevant and sufficient.

The Government stressed that the applicant had been found guilty only in disciplinary proceedings. No civil or criminal proceedings on a public indictment had been instituted or even envisaged against her. Lastly, the penalty imposed on her had been one of the most lenient possible and concerned not only the breach of Article 52 § 2 of the Code of Medical Ethics but also other charges brought against the applicant. In sum, the interference was necessary to achieve a balance between the protection of patients' health, the interests of other medical practitioners and the applicant's right to freedom of expression.

The applicant submitted that she had been penalised for having expressed her opinions concerning matters of clinical judgment which were of the highest importance for the patients and for disclosing the true facts relating to W.R.K.'s professional qualifications and conduct. The medical courts had unduly focused on the applicant's criticism of the conduct of a colleague, having completely failed to take into consideration the quality of diagnostic and therapeutic measures administered to the patients. They had failed to examine whether the applicant's acts had been intended to protect the patients' interests. The courts had been overly concerned with the protection of the applicant's former superior's reputation, to the detriment of everything else.

The applicant further emphasised that the findings of the medical courts had been completely inconsistent with the findings made by the labour court, both as to the facts and as to the law. She argued that this cast serious doubt on the former's correctness and lawfulness.

The Court reiterates that freedom of expression, as secured in paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to paragraph 2, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’ (see, among many other authorities, Oberschlick v. Austria (no. 1), 23 May 1991, § 57, Series A no. 204; and Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII).

The Court would also point out that Article 10 guarantees freedom of expression to ‘everyone’. The Court has held on many occasions that Article 10 applies to all kinds of information or ideas or forms of expression including when the type of aim pursued is profit-making or relates to a commercial activity of an applicant (see Casado Coca v. Spain, 24 February 1994, § 35, Series A no. 285-A; Barthold v. Germany, 25 March 1985, § 42, Series A no. 90; Stambuk v. Germany, no. 37928/97, §§ 43–52, 17 October 2002; and Frankowicz v. Poland, no. 53025/99, § 39, 16 December 2008).

The Court's task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’… In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts…’ (see, among many other authorities, Sunday Times (no. 1) v. the United Kingdom, 26 April 1979, § 62, Series A no. 30; Guja v. Moldova [GC], no. 14277/04, § 69, 12 February 2008).

Under the Court's case-law, the States parties to the Convention have a certain margin of appreciation in assessing the necessity of an interference, but this margin is subject to European supervision as regards both the relevant rules and the decisions applying them (see, inter alia, markt intern Verlag GmbH and Klaus Beermann v. Germany, 20 November 1989, § 33, Series A no. 165; and Casado Coca, cited above, § 50).

The Court first observes that it is common ground between the parties that the reprimand imposed on the applicant by the Medical Court amounted to an interference with the exercise of her right to freedom of expression.

Such interference infringes the Convention if it does not satisfy the requirements of paragraph 2 of Article 10. It must therefore be determined whether it was ‘prescribed by law’, whether it pursued one or more of the legitimate aims set out in that paragraph and whether it was ‘necessary in a democratic society’ to achieve such aims.

The Court observes that the interference was based on Article 1 paragraph 3 and Article 52 paragraphs 1, 2 and 3 of the Code of Medical Ethics. The medical courts found the applicant guilty of unethical conduct punishable under those provisions of the Code. The conduct was said to consist of: failure to comply with her superior's orders (paragraph 1); publicly making disparaging statements about her superior to the medical staff of the ward (paragraph 2); informing other doctors about what she perceived to be erroneous decisions on her superior's part and taking patients' medical records out of the hospital to show them to the regional consultant (paragraph 3); and inability to work in a medical team (Article 1 paragraph 3 of the Code) (see paragraph 27 above). The Court is of the view that only the issues arising in connection with offences of publicly making disparaging statements about her superior to the medical staff of the ward and informing other doctors about what she perceived to be erroneous decisions on her superior's part are relevant for the applicant's complaint under Article 10 of the Convention. Notwithstanding the fact that following the applicant's conviction the Constitutional Court held that a strict interpretation of Article 52 (2) of that Code was unconstitutional, the Court can accept, for the reasons outlined above (see paragraph 55) that the interference complained of was at the material time ‘prescribed by law’ within the meaning of Article 10 of the Convention.

The interference with the applicant's right to freedom of expression was intended to pursue a legitimate aim referred to in Article 10 § 2 of the Convention, namely to protect the rights and reputation of others.

The Court will therefore examine whether the interference with the applicant's right to freedom of expression was necessary in a democratic society.

The Court has already held that matters relating to the practice of a profession practice are not removed from the protection of Article 10 of the Convention (see paragraph 68 above; see also Frankowicz v. Poland, cited above, § 9).

The disciplinary authorities considered the applicant guilty of unethical conduct in breach of the principle of professional solidarity, in violation of the Code of Medical Ethics.

The Court notes that the applicant, a doctor in a public hospital, expressed concern in her letter of 16 September 2004 to the regional consultant about the correctness of diagnostic and therapeutic decisions made by her superior. She referred to concrete cases and provided detailed explanations as to why she was of the view that the quality of medical care given to those patients was open to criticism.

The Court further notes the findings of the labour court that the applicant, even prior to that letter, had already alerted the director of the hospital to what she perceived as shortcomings in the professional decisions made by W.R.K. That court had also found that the applicant had informed the director that she had shown the medical records of certain patients to the regional consultant and that the director had not formulated any objections with regard to that action. Hence, the Court is satisfied that the applicant took steps with a view to drawing the attention of the competent authorities to what she perceived as a serious dysfunction in the work of her then superior.

The Court is well aware that the applicant and her superior were in a long-standing conflict. This is not in dispute and has been confirmed by various pieces of evidence which were before the domestic courts. However, the Court does not share the Government's conviction that the background to that conflict automatically divested the negative statements made by the applicant about her superior of all objectivity and legitimacy. It should be noted that the case before the medical authorities did not concern any negative statements about W.R.K.'s character or gratuitous attacks against her. The domestic courts did not find that the applicant had personally insulted the head physician in any way. The applicant was penalised essentially for the fact that she had expressed concerns, to persons working in the ward, to the hospital's authorities and to the regional consultant, about the quality of medical care given to patients on her superior's orders.

The Court has previously acknowledged, in the context of the legal profession, that the special nature of the profession practised by an applicant must be considered in assessing whether the restriction on the applicant's right answered any pressing need (see Steur v. the Netherlands, no. 39657/98, § 38, ECHR 2003-XI). Medical practitioners also enjoy a special relationship with patients based on trust, confidentiality and confidence that the former will use all available knowledge and means to ensure the well-being of the latter. That can imply a need to preserve solidarity among members of the profession (see Frankowicz v. Poland, cited above, § 49).

However, the Court observes that the domestic authorities, in finding that the applicant had discredited another doctor, did not make any serious assessment of the truthfulness of the statements included in the opinion (see Veraart v. the Netherlands, no. 10807/04, §§ 60 and 61, 30 November 2006). On no occasion during the domestic proceedings was it established that the applicant's clinical judgment was deficient, or that she lacked professional skills. Indeed, the labour court, in its judgment of 22 December 2005, found that the applicant was a very good specialist (see paragraph 11 above). Furthermore, at no time did the disciplinary courts address the question whether the applicant's statements had been made in good faith.

The medical courts failed to address in their decisions the question of whether the applicant's concerns had been justified. They rather focused on the mere fact that the Code of Medical Ethics as it stood at the material time prohibited criticism of other colleagues.

Such a strict interpretation of the domestic law by the disciplinary courts as to ban any critical expression in the medical profession is not consonant with the right to freedom of expression (see Stambuk, cited above, § 50). The Court has already found, in another case against Poland (Frankowicz v. Poland, cited above) in which the application of Article 52 (2) of the Code of Medical Ethics was concerned, that this approach to the matter of expressing a critical opinion of a colleague, even in the context of the medical profession, risks discouraging medical practitioners from providing their patients with an objective view of their state of health and treatment received, which in turn could jeopardise the ultimate goal of the medical profession — that is to protect the health and life of patients.

The Court notes that the domestic authorities did not examine whether the applicant had been defending a socially justified interest. The Court considers that the applicant's opinion was a critical assessment, from a medical point of view, of treatment received by patients from another doctor. Thus, it concerned issues of public interest.

Lastly, the Court has also been struck by the fact that the medical court paid no heed to the findings of the labour court. It could reasonably be expected that certain passages in the reasons of the latter's judgment could have been referred to by the medical court as they were highly pertinent for the findings of fact to be made and also for the legal assessment of the situation. In particular, the medical court found the applicant guilty of amending medical records without informing her superior (see paragraph 28 above). This does not sit well with the finding made by the labour court that in 2004 the hospital's director had reviewed the medical records of the ward's patients and found no irregularities (see paragraph 12 above). Nor does it appear compatible with the labour court's conclusion that these allegations had not been confirmed by the evidence (see paragraphs 13 and 14 above). It is further noted that the medical court found the applicant guilty of an offence punishable under Article 52 (3) of the Code of Medical Ethics in that she had improperly taken the medical records out of the hospital to show them to the regional consultant (see paragraph 27 above). The findings of the medical court in this respect are also incompatible with the findings of the labour court which held that such conduct was expressly recommended by the Law on the Profession of Physicians (see paragraph 14 above).

The Court is of the view that such serious discrepancies between, on the one hand, the judicial decision delivered by the court in civil proceedings following a fair procedure and, on the other, the decision of the medical court must be seen as detracting from the authority of the latter decision.

To sum up, the Court takes the view that the grounds relied on by the medical courts were neither relevant nor sufficient.

In conclusion, the Court considers that the interference complained of was not proportionate to the legitimate aim pursued and, accordingly, was not ‘necessary in a democratic society’. Consequently, it gave rise to a violation of Article 10 of the Convention.