ABSTRACT
The Swiss Constitution guaranteed the freedom of professional activity, construed by the Federal Court as embracing the medical profession. The dispute therefore concerned the very existence of a right which could be said, on arguable grounds, to be recognised under domestic law. In addition, the dispute was genuine and of a serious nature. On the question of whether the right in issue was a ‘civil right’, the Court recalled its case-law concerning the medical profession. In Switzerland, the profession had features which were of a public law nature: it was subject to administrative rules, enacted in the public interest, and its exercise depended 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. The dispute between him and the Zürich Government therefore concerned a ‘civil right’. As to whether A 6(1) also applied to the examination of the public law appeal, the proceedings came within the scope of that provision, even if they were conducted before a constitutional court, where their outcome was decisive for civil rights, and in order to determine whether this is so in a given case, it was necessary to have regard to all the circumstances. The Zürich Administrative Court had denied the applicant the right to practise medicine independently. It was open to the Federal Court to quash the contested judgment, or to grant the authorisation which the applicant was seeking. The direct effect of the recognition of the right claimed was consequently beyond question. A 6(1) was applicable. The Health Authority, the Cantonal Government and the Administrative Court of Zürich had carefully studied the applicant’s application for an authorisation. The judges of the Federal Court 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 the judges complained, at the public deliberations, 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. The Court stressed the importance of appearances in the administration of justice, but made clear that the standpoint of the persons concerned was not in itself decisive. The misgivings of the individuals before the courts, for instance with regard to the fairness of the proceedings, had in addition to be capable of being held to be objectively justified. The judge in question had taken an active part in the deliberations. However, there was no evidence to suggest that the appeal was not examined with due care before the decision was taken. The applicant’s complaint did not prove to be well founded. Even though the judge’s comment was open to criticism, the manner in which the Federal Court dealt with the case did not give rise to any reasonable misgivings. There had therefore been no violation of A 6(1).
