Autonomy of disciplinary action from the criminal procedure. An acquittal is not binding on disciplinary bodies that may impose disciplinary action
JUDGMENT
Bonnemaison v. France 11.04.2019 (no. 32216/15)
SUMMARY
Autonomy of disciplinary proceedings from criminal. Decision of the Medical Association to strike of the applicant from the medical register. The applicant repeatedly injected lethal injections into patients to put an end to their suffering. Penalty of the doctor for six out of seven deaths. However, the Disciplinary Council decided to remove him from the register due to the severity and the recurring nature of his moral misconduct.
The ECtHR did not find any evidence that there was a lack of impartiality, given that the decisions were duly substantiated. It also considered that the outcome of the criminal proceedings was not decisive for the disciplinary proceedings. The disciplinary process is completely autonomous and not the direct consequence of criminal law. Finally, the Court pointed out that there had been no violation of the right to protection of property due to the cessation of the medical profession, since future income from professional activity could be regarded as “possession” only when acquired or when there is an enforceable claim for their existence. No violation of Article 6 (1) and (2) and Article 1 of the First Additional Protocol. Applicattion inadmissible.
PROVISIONS
Article 6 §§ 1, 2
Article 1 of the First Additional Protocol
PRINCIPAL FACTS
The applicant, Nicolas Bonnemaison, is a French national who was born in 1961 and lives in Bayonne
(France). He is a general practitioner.
In 2011 a medical worker sent a serious incident report to the Director of the Côte Basque Hospital
in Bayonne. He suspected Mr Bonnemaison of having caused the death of four end-of-life patients,
without the knowledge of their families and his colleagues. The deaths occurred very quickly after
the doctor had left their rooms. In an article published in 2011, Mr Bonnemaison’s lawyer stated
that his client had admitted to the facts, which he had carried out to put an end to the patients’
suffering.
Having been remitted for trial by an investigating judge, he was eventually acquitted by an assize
court in 2014. The court held that while he had administered lethal injections without informing the
health-care team and the families, and without updating the patients’ medical files, no intent to kill
had been established, in view of the possible unintended effects of the products used. In 2015 the
assize court of appeal acquitted Mr Bonnemaison in respect of six deaths, but convicted him of the
death of one female patient and imposed a two-year suspended prison sentence. Mr Bonnemaison
did not appeal on points of law.
In September 2011, concurrently with the criminal proceedings, the National Council of the Medical
Association (the “ordre des médecins”) submitted the case to its disciplinary board.
In 2012, after Mr Bonnemaison had orally acknowledged the seriousness of the accusations, the
first-instance disciplinary division of the Medical Association decided to strike Mr Bonnemaison off
the medical register on account of the seriousness and repeated nature of the ethical breaches in
question. In 2014 the National Disciplinary Division of the Medical Association dismissed appeals by
Mr Bonnemaison and by the Département Council, on the grounds, specifically, of the lawfulness of
the disciplinary proceedings, the independence of the criminal and disciplinary proceedings, and the
fact that the applicant had not contested the veracity of the accusations.
The Conseil d’État dismissed the appeal on points of law in a lengthily reasoned judgment of
30 December 2014. In 2016 the National Disciplinary Division of the Medical Association, ruling on
an application for reopening of the proceedings submitted by the applicant, upheld the sanction
imposed.
THE DECISION OF THE COURT
Article 6 § 1
The Court noted firstly that Mr Bonnemaison had not raised the complaint alleging a lack of
independence on the part of the disciplinary divisions before the Conseil d’État, and that he had not
therefore exhausted domestic remedies.
Further, it found no evidence to suggest that there had been any lack of impartiality, since the
decisions and judgment had been duly reasoned. The Court concluded that this complaint had to be
rejected as manifestly ill-founded.
Article 6 § 2
The Court noted that the judges had restricted themselves to noting the material facts and had
refrained from drawing any conclusion regarding a criminal classification. In addition, the outcome
of the criminal proceedings had not been decisive for the disciplinary proceedings, which had been
fully autonomous and not the direct corollary of the criminal proceedings.
The Court concluded that Article 6 § 2 was not applicable to the present case and that the complaint
had to be dismissed.
Article 1 of Protocol No. 1
The Court noted that the alleged violation of Article 1 of Protocol No. 1 had not been expressly
raised before the Conseil d’État. It further reiterated its case-law to the effect that future income in
professional practice could only be considered a “possession” once it had been earned or where an
enforceable claim to it existed. The termination of his professional activity had not interfered with
the applicant’s “possessions” within the meaning of Article 1 of Protocol No. 1, which was not
therefore applicable. It followed that this part of the application had also to be rejected(echrcaselaw.com editing).
