The criminal conviction of doctors after their disciplinary conviction for suspension of medical practice did not violate the principle ne bis in idem

JUDGMENT

Faller v. France (app. no. 59389/16) and Steinmetz v. France (App. no. 59389/16) 22.10.2020

see here

SUMMARY

The case concerned two doctors who complained that they had been convicted by a criminal court
for fraud on account of acts for which they had already been punished.

The applicants had first been found liable by the National Medical Council’s disciplinary board (social
security division), in 2009, for professional misconduct in their treatment of patients under social
security schemes. They had been banned from treating patients under this regime for four months,
two of which were suspended, pursuant to Articles L. 145-1 and L. 145-2 of the Social Security Code.
They had subsequently been convicted and sentenced in 2014 by the Court of Appeal of Colmar.

The Court found that the 2009 decision against the applicants pursuant to the Social Security Code
had not been a “conviction” for an “offence” within the meaning of Article 4 of Protocol No. 7 (right
not to be tried or punished twice) to the European Convention on Human Rights and that this Article
was therefore inapplicable.

PROVISION

Article 4 of the 7th Protocol

PRINCIPAL FACTS

The applicants, Bernard Faller, who was born in 1953 and lives in Colmar (France), and Michel
Steinmetz, who was born in 1950 and lives in La Couarde Sur Mer (France), both French nationals,
are doctors specialising in functional rehabilitation. They are partners in a practice in Colmar and
operate under the social security system with the right to set their own fees.

Upon analysing requests for reimbursements and the findings of investigations carried out in the
applicants’ surgery between February and July 2007, the Primary Health Insurance Office (CPAM) of
Colmar found that the applicants had billed undue fees. Moreover, in April 2008, an inspection of
the surgery by the Nuclear Safety Authority revealed that the X-rays were being carried out on the
premises by staff who did not hold official qualifications.

The chief medical officer for Colmar filed a complaint against the applicants with the Regional
Medical Council for Alsace.

In two decisions handed down on 28 November 2008, the social-security division of the Alsace
Regional Medical Council banned the applicants from treating patients under social security schemes
for 24 months, 12 of which were suspended.

The applicants appealed to the social-security division of the National Medical Council. In two
decisions handed down on 15 October 2009, the decisions of 28 November 2008 were partly
quashed and the duration of the ban was set at four months, two of which were suspended. The
chief medical officer for Colmar appealed on points of law before the Conseil d’État, which on
9 September 2019 declared the appeal inadmissible.

In the meantime, on 17 April 2008, the CPAM of Colmar filed a complaint against the applicants with
the public prosecutor of Colmar. The CPAMs of Sélestat and Mulhouse filed similar complaints on 26 September 2008 and 19 January 2009. A judicial investigation was opened on 25 March 2009 on a charge of fraud.

On 21 March 2014 the Criminal Court of Colmar acquitted the applicants on the charge of double
invoicing. However, it found them guilty of fraud, illegal practice of the profession of medical X-ray
operator and deception as to the nature, quality or regime of a service provided. It sentenced each
of them to a suspended term of four months’ imprisonment and a fine of 25,000 euros (EUR).

On 28 May 2015 the Colmar Court of Appeal upheld the judgment of 21 March 2014 in so far as it
found the applicants guilty of illegal X-ray operation and of deception as to the nature, quality or
origin of a service, while setting aside the remainder. It also found them guilty of having, in Colmar,
deceived the health insurance office, which constituted the offence of fraud. The Court of Appeal
sentenced each of the applicants to a suspended term of 18 months’ imprisonment, a fine of
EUR 25,000 and a one-year disqualification from medical practice. It also ordered them jointly and
severally to pay the civil parties (the CPAMs of Haut-Rhin and Bas-Rhin and the Agricultural Social
Insurance Fund for Alsace) a total of EUR 674,184.75 in damages and EUR 8,000 in costs.

The claimants appealed on points of law to the Court of Cassation, which dismissed the appeal in a
judgment of 3 May 2016.

Relying on Article 4 of Protocol No. 7 (right not to be tried or punished twice) to the Convention, the
applicants complained that they had been convicted before a criminal court of fraud on the basis of
acts for which they had already been punished.

THE DECISION OF THE COURT…

Article 4 of Protocol No. 7 (right not to be punished twice)

The applicants had first been found liable by the National Medical Council’s disciplinary board (social
security division), in 2009, for professional misconduct in their treatment of patients under social
security schemes. They had been banned from treating patients under this regime for four months,
two of which were suspended, pursuant to Articles L. 145-1 and L. 145-2 of the Social Security Code.
They had subsequently been sentenced by the Court of Appeal of Colmar to a suspended term of
18 months’ imprisonment, a fine of EUR 25,000 and a disqualification from practising medicine for
one year, also being ordered jointly and severally to pay the civil parties a total of EUR 674,184.75 in
damages and EUR 8,000 in costs. This conviction was unquestionably to be characterised as
“criminal” within the meaning of the Convention.

The question before the Court was thus whether the applicants, on whom a sanction had first been
imposed for misconduct, in connection with the treatment of patients under social security schemes,
had subsequently been convicted for a “criminal offence” within the meaning of Article 4 of Protocol
No. 7 to the Convention.

In the A and B v. Norway judgment, the Court had explained that, in order to determine whether
proceedings were criminal for the purposes of Article 4 of Protocol No. 7, the three “Engel” criteria
relating to the notion of “criminal charge” within the meaning of Article 6 § 1 of the Convention had
to be applied: the legal classification of the offence in domestic law, the nature of the offence itself
and the nature and severity of the penalty incurred. The Court reiterated its long-standing view that
disciplinary proceedings did not as such fall within the “criminal” sphere.

Applying the “Engel” criteria, the Court found, firstly, that the applicants had appeared before the
disciplinary bodies of the Medical Council for professional misconduct in connection with the
treatment of patients under social security schemes, within the meaning of Article 145-1 of the
Social Security Code, an offence which, under French law, did not fall within the scope of the
criminal law. Secondly, the very nature of the offence under Article 145-1 of the said Code was not
criminal. Thirdly, the sanctions that could be imposed under Article 145-2 of the Code were not
criminal, since they consisted of a warning, a reprimand, a temporary or permanent disqualification
from practice and, in the case of improper billing, reimbursement or repayment of sums unduly
received. Finally, the Court noted that while the disqualification could, admittedly, be regarded as
severe since it affected a doctor’s ability to practise his or her profession, Article 145-2 of the Code
did not provide for fines or for custodial measures. The Court thus concluded that the decision taken
against the applicants under Articles L. 145-1 and L. 145-2 of the Social Security Code had not been a
“conviction” for an “offence” within the meaning of Article 4 of Protocol No. 7.

The applications thus had to be rejected.


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