APPLICATION/REQUÊTE No 19898/92

B.C. v/SWITZERLAND

B.C. c/SUISSE

DECISION of 30 August 1993 on the admissibility of the application

DÉCISION du 30 août 1993 sur la recevabilité de la requête

Article 8, paragraph 1 of the Convention: The positive obligations which
may be derived from the right to respect for private life do not compel the
legislator (Switzerland) to require reimbursement of the cost of medical
treatment provided by doctors not participating in an insurance scheme.

Article 9, paragraph 1 of the Convention: An act which does not directly
express a belief is not a "pratice" protected by this provision, even
though it is motivated or influenced by it. In this case, choice of a
doctor does not constitute manifestation of a belief.

Competence ratione materiae: The Convention does not guarantee as such a
right to free choice of a doctor.

(TRANSLATION)

THE FACTS

The applicant is a Swiss national born in 1944. He is an engineer and
lives in Sierre.

The facts of the case, as submitted by the applicant, may be summarised
as follows:

On 27 March 1980 the Valais Medical Association, on the one hand, and
the Valais Federation of Sickness Insurance Funds (FVCM) and the Valais
Federation of Friendly Societies, on the other, concluded an agreement
designed in particular to lay down scales for the medical fees chargeable
by doctors in the canton of Valais who had signed the agreement.

The applicant is insured by the Swiss Friendly Society Helvétia (SSSMH),
inter alia in respect of expenditure on pharmaceutical products and
additional expenditure in the event of treatment in hospital. The SSSMH
is a member of the FVCM.

In 1987 and 1988 the applicant was treated by Dr. T.

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On 28 February 1989 the SSSMH informed him that it would refuse to
reimburse that doctor's fee as he had not acceded to the agreement of 27
March 1980. It confirmed its refusal by a decision of 13 March 1989.

The applicant appealed against the SSSMH's decision to the Sion Cantonal
Insurance Tribunal, arguing that it was ultra vires.

In a decision of 18 February 1992 the Cantonal Insurance Tribunal dismissed
the applicant's appeal.

It pointed out that, according to the case law of the Federal Insurance
Tribunal, sickness insurance funds were not obliged to reimburse the fees
of doctors not participating in the scheme. The free choice of doctor
instituted by the Law of 13 June 1911 on sickness and accident insurance
was not absolute but conditional, being restricted to doctors participating
in the scheme, and concluded that the applicant had to bear the financial
consequences of his decision.

The applicant appealed to the Federal Insurance Tribunal.

In a decision dated 14 July 1992 the Federal Insurance Tribunal dismissed
the appeal. It referred to the established case law in this field, to
the effect that it was open to sickness insurance funds to decide not to
reimburse the cost of treatment provided by doctors not participating in
an insurance scheme.

COMPLAINTS

The Applicant alleges a violation of Articles 8 and 9 of the Convention.

1. He complains of the decision taken by his sickness insurance fund
refusing to reimburse the cost of treatment by his doctor on the ground
that the latter had not acceded to the agreement of 27 March 1980. He
maintains in that connection that the refusal of reimbursement deprived
him of the right to consult the doctor who had his trust and constituted an
interference with his private life in breach of Article 8 of the Convention.

2. The applicant also complains of a violation of Article 9 of the
Convention. He alleges that in attempting to induce him not to consult the
doctor in question any longer the Swiss authorities intended to dissuade
him from exercising his freedom of thought and the freedom to manifest
his beliefs.

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THE LAW

1. The applicant complains of the decision refusing to reimburse the cost
of treatment by his doctor. He considers that this decision limited his
right to the free choice of medical assistance and infringed his right to
respect for his private life, as set forth in Article 8 of the Convention.

Article 8 of the Convention is worded as follows:

"1. Everyone has the right to respect for his private and family life,
his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of
this right except such as is in accordance with the law and is necessary
in a democratic society in the interests of national security, public
safety or the economic well-being of the country, for the protection of
the rights and freedom of others."

The Commission notes in the first place that the right to the free choice of
medical assistance ist not as such included among the rights and freedoms
guaranteed by the Convention (No. 7289/75 and No. 7349/76, Dec. 14.7.77,
D.R. 9 p. 57).

However, even supposing that the right in question could be derived from
Article 8 of the Convention, the Commission considers that while a refusal to
reimburse the cost of treatment carried out by a doctor not participating in
an insurance scheme may be an important factor in the choice of a doctor, it
does not do away with the right to the free choice of medical assistance. It
notes that the applicant claims, not that the State must avoid intervening,
but rather that it should take steps to modify the existing system. The
question therefore arises whether effective respect for the applicant's
private life created a positive obligation for the Swiss authorities in
this area.

The Commission recalls that the notion of "respect" enshrined in Article 8
is not clear-cut. This is the case especially where the positive obligations
implicit in that concept are concerned, as in the instant case, and its
requirements will vary considerably from case to case according to the
practices followed and the situations obtaining in the Contracting States. In
determining whether or not such an obligation exists, regard must be had to
the fair balance that has to be struck between the general interest and the
interests of the individual (see, among other authorities, Eur. Court H.R.,
B. v. France judgment of 25 March 1992, Series A no. 232-C, p. 47, para. 44).

The Commission observes that, in requiring their policy-holders to be
treated only by doctors participating in the scheme, the parties to the
agreement in issue were pursuing the objective of protecting insured
persons from the risk of overcharging by doctors. It considers that this
public interest concern justified restricting the right of those insured
to the free choice of medical assistance.

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It notes in that connection that most of the member States have adopted
similar legal rules in this area. If account is taken of the wide margin
of appreciation which is to be left to member States in these matters and
the need to protect the interests of others in order to attain the desired
balance, the positive obligations derived from Article 8 cannot be held
to go so far as to compel the Swiss parliament to require reimbursement
of the cost of medical treatment provided by doctors not participating in
an insurance scheme.

The Commission therefore considers that the right of sickness insurance
funds under the relevant legislation to refuse to reimburse the cost of
medical treatment provided by doctors not participating in an insurance
scheme does not constitute a failure by the public authorities to respect
the applicant's private life.

It follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 27 para. 2 of the Convention.

2. The applicant further complains, on the basis of the same facts, of an
infringement of his right to freedom of thought, as guaranteed by Article
9 of the Convention.

Article 9 para. 1 of the Convention provides:

"Everyone has the right to freedom of thought, conscience and religion, this
right includes freedom to change his religion of belief and freedom, either
alone or in community with others and in public or in private, to manifest
his religion or belief, in worship, teaching, practice and observance."

However, according to the Commission's case-law, when the actions of
individuals do not actually express the belief concerned they cannot be
considered to be protected by Article 9 para. 1, even when they are motivated
or influenced by it (see Arrowsmith v. United Kingdom, Comm. Report 12.10.78,
para. 71, D.R. 19 pp. 5, 20)

The Commission considers that in this case the applicant did not, in
choosing his doctor, express his beliefs within the meaning of Article 9
para. 1, but rather manifested his esteem for his doctor's skill and the
importance he attached to the Hippocratic oath.

It follows that the remainder of the application is likewise manifestly
ill-founded and must be rejected pursuant to Article 27 para. 2 of the
Convention.

For these reasons, the Commission, unanimously, DECLARES THE APPLICATION
INADMISSIBLE