Note
Original Text is in Amharic. This is an Unofficial Translation
Cassation Case No. 252364
December 26, 2023 (Ethiopian Calendar)
Justices: Birhanu Amenew
Bewketu Belay
Kenea Kitata
Birhanu Mengistu
Marta Teka
Applicants: 1. Dr. Amha Achamyelew Yigzaw
2. Dr. Zekarias Taye Sisay
3. Sr. Ainadis Habtamu
Respondent: Addis Ababa Food, Medicine and Healthcare Administration and Control Authority
The file has been examined and the following judgment is rendered:
JUDGMENT
This file was submitted to this chamber because the applicants appealed the Federal High Court’s decision file number 301299 dated October 26, 2022 (Ethiopian Calendar) and the Federal Supreme Court Appellate Chamber’s order file number 250663 dated November 25, 2022 (Ethiopian Calendar) alleging that it is a fundamental error of law because the court decided it didn’t have the material jurisdiction to hear the case stating that the Federal High Court’s decision on administrative decisions in its appellate jurisdiction is final as stated in Proclamation number 1183/2012.
Briefly, the origin of the case is that the applicants, in their petition filed on May 28, 2023 (Ethiopian Calendar), stated that the administrative actions taken against them by the Respondent, namely that the 1st Applicant’s medical license was suspended for 1 year for not conducting and documenting, not transferring medical examinations after surgery; for not taking action and not being present when the patient was reported to be in a critical condition; the 2nd Applicant’s medical license was suspended for 6 months for not calling a senior doctor to follow up and for not providing adequate follow-up; and the 3rd Applicant’s medical license was suspended for 9 months because the follow-up after the surgery was incomplete and for not referring the patient to experienced healthcare professionals before her health deteriorated, based on Article 35(8) and 33(1)(ረ) of Directive No. 1/2007 of the Addis Ababa Health Professionals Ethics Committee as per decision proposal no. የጤ/ባ/መ/ቁ/164/2013 was approved by the Director General of the Respondent’s office on May 02, 2023 (Ethiopian Calendar) suspending the Applicant’s professional licenses. The applicants filed a petition to the Federal High Court stating that this decision should be reviewed pursuant to Proclamation No. 1183/2012, stating that the Respondent decided without duly hearing and examining the evidence; that the conclusion reached by the Applicant that he caused damage due to negligence is inappropriate; the Applicants have made a high professional effort to improve the patient’s health condition; According to Article 33(7) of the Addis Ababa Health Professionals Ethics Committee Directive No. 01/2007, a professional ethics violation is considered serious if it causes a serious health problem; this is not applicable in the current case as the patient has died; even though the patient died, the cause of her death has not been confirmed by autopsy; The committee also did not confirm that the 1st applicant was the cause of the patient’s death; They were not charged with a crime; the documentary evidence we have submitted does not show that we have committed professional misconduct; the decision given is outside the authority given to the Authority by the Directive, and the suspension does not match the conclusion reached by the Committee, therefore the administrative decision should be reviewed.
The court examined the case and found that the applicants’ petition is based on the Addis Ababa City Administration Health Professional Ethics Committee Directive No. 120/2014; According to the directive, a person who has a complaint against an administrative decision has the right to appeal the matter to the relevant court; The applicants’ petition, in general or in detail, does not require administrative decision review under Proclamation No. 1183/2012, but should be submitted for appeal. The fact that the body legally authorized to examine and decide on this matter at the appeal level is the Addis Ababa City Court established under the Administration is mentioned under Article 43 (3) of Proclamation No. 361/95. Therefore, the court ruled that the applicant’s request for relief is not a matter of dispute to be presented to the court under Proclamation 1183/2012 because the matter was previously given to the court by law and the court does not have the authority to accept the matter and make a decision according to Civil Procedure Code number 231(1).
The Applicants filed an appeal to the Federal Supreme Court against the decision and the Chamber reviewed the appeal and Proclamation Number 1183/2012 states in Article 49(1) that the decision given by the Federal High Court in its appellate jurisdiction on an administrative decision is final. Therefore, the Federal Supreme Court has decided by majority vote that it does not have the material jurisdiction to hear and decide the appeal. The appeal is presented to this Supreme Court chamber on this matter.
The substance of the Applicants’ petition written and submitted on August 15, 2023 (Ethiopian Calendar) is briefly: The Federal High Court has stated that a person who has a complaint under the Addis Ababa Health Professionals Ethics Committee Directive No. 120/2014 has the right to appeal to the appropriate court; The Applicants’ question is to be seen at the appeal level and not to be seen as presented under the Federal Administrative Procedure Proclamation No. 1183/2014, which contradicts the binding legal interpretation given by the Supreme Court Cassation Bench under Cassation Case Number 200289 on October 25, 2022 (Ethiopian Calendar) stating that the Addis Ababa City Courts do not have the authority to hear and decide complaints related to the provision of medical services, but under the Federal Administrative Procedure Proclamation No. 1183/2012. It is a fundamental error of law because the High Court’s ruling stating it does not have the jurisdiction to hear the matter was considered the final decision by the Supreme Court which is inappropriate and not based on Article 2(4)(ለ) of the Federal Courts Proclamation No. 1234/2013; Therefore, the Applicants have requested that the Federal High Court’s decision in File No. 301299 dated June 26, 2023 (Ethiopian Calendar) be overturned so that the court has the material jurisdiction to hear the case; and the Federal Supreme Court’s order in Appeal File No. 250663 dated 25/2023 (Ethiopian Calendar) be deemed to be interpreting the law inappropriately so that it has the power to hear the case on appeal.
The Supreme Court Screening Chamber, after examining the petition, ordered the Respondent to submit a response to verify if the applicants’ request for judicial review regarding the decision-making process and the Respondent’s decision-making power, based on Federal Administrative Procedure Proclamation No. 1183/2012, which is not to be reviewed by the High Court, is legal in light of the powers given by law and the interpretation given by the Supreme Court Chamber in File Number 200289; to verify whether the failure of the lower High Court to accept the appeal stating that the decision is final without reviewing the administrative decision is a fundamental error of law from the point of view of the right to justice that citizens have in the Constitution and the system of appeal rights outlined in the procedural law.
The respondent submitted a written response on January 07, 2024 (Ethiopian Calendar), the substance of which is in brief; According to Article 37 Sub-Article 1 and 2 of the Addis Ababa Health Professionals Ethics Committee Directive No. 120/2014, regarding asking for an appeal, a body that believes that a violation of law or procedure has been committed in the decision given by the committee can appeal to the relevant court within 30 days of the decision being passed; In Addis Ababa City Administration Charter Proclamation No. 361/95 Article 43/3 specifically gives the Addis Ababa City Court Appellate Court the jurisdiction to hear the case, it is inappropriate to come to the conclusion that the review of administrative decisions is fully given to the Federal High Court; Also, implementing the Administrative Procedure Proclamation widely or extensively on administrative decisions will lead to the conclusion that all disputes that are seen in the Federal and Addis Ababa City Courts; in the Administrative Court and in other bodies that are given the power to judge by law are to be reviewed by the Federal High Court which will make the role of these judicial bodies meaningless and creates work pressure on the High Court, therefore the ruling of the lower courts should not be criticized and the applicants’ petition should be rejected. The applicants submitted a reply to strengthen their Supreme Court appeal.
The origin of the argument is as stated above, and we have examined it by relating it with the argument of the parties, the decision of the lower court, and the relevant legal provisions by basing it on the issue in question. As we have examined, the file shows that the applicants’ petition stems from the fact that the Director-General of the Respondent’s institution approved the decision proposal presented by the Ethics Committee of the Institution, and the administrative decision was to be reviewed by the Federal High Court under Proclamation No. 1183/2013 by detailing the reasons why it is wrong. However, both the Federal High Court and the Federal Supreme Court Appellate Chamber closed the file without entering the matter of substance stating they do not have jurisdiction. The applicants strongly object to the fact that both lower courts have stated that they do not have judicial jurisdiction without properly examining the matter which is a fundamental error of law and it conflicts with the constitutional right to justice.
Basically, Article 37(1) of the FDRE Constitution stipulates that any person has the right to submit a case that must be decided by a court to a court or other body legally authorized to adjudicate and to obtain a decision or judgment. In the present case, it is not disputed that a party with a grievance against the decision given by the Respondent institution can file a petition. The point of contention is who has the authority to hear an appeal against a decision given by the Respondent institution? Basically, it is a right to appeal a decision given by a court or a body granted quasi-judicial power, and the body authorized to hear the appeal is determined by following the system established by law. Therefore, the matter that should be examined primarily is whether the decision complained of is an administrative decision or not. To answer this question, it is appropriate to see the definition given in the Federal Administrative Procedure Proclamation No. 1183/2012. As stated in the definition section of this proclamation, “Administrative Decision” means an administrative decision given by an administrative institution in its day-to-day functions on people’s rights or interests, excluding the issuance of directives. See Article 2(2) of the Proclamation. Administrative institutions may make decisions regarding matters concerning people’s rights or interests based on their legally granted powers and responsibilities, either on the initiative of the institution or on the application of the person concerned. The principles and procedures that institutions follow when making administrative decisions are detailed in Part Three of the Proclamation. As can be understood from the introduction of the Proclamation and the detailed content of the provisions, the reason why the Proclamation was needed was to lay down the principles and procedures that guide administrative institutions’ decision-making and directive-making, and on the other hand, to ensure administrative justice by establishing a system in which a person aggrieved by administrative decisions and directives can have the legality of the decisions and directives examined in court. Overall, the main purpose for which the appeal and review system is established is to create an opportunity for the correction of a decision with an error, but it is known that there is a fundamental difference between the procedure of submitting a petition (complaint) and its content. In this regard, the review procedure focuses on the process and its rationality rather than on the outcome, while the appeal procedure provides a wider opportunity to correct the defect in both the process and the outcome. Therefore, the appeal system is preferred in various legal systems due to the narrow implementation of the review system. As is well known, it is common for government administration (the executive branch of government) to give law-making and quasi-judicial powers on certain matters in addition to enforcing the law. However, it is also a common practice to establish and implement a system in which the legal authority and/or the judicial body monitors and controls whether these functions are performed within the scope of the powers granted by law. It is obvious that the purpose for which an administrative decision is reviewed by a judicial body is to verify the legality of the decision.
In the present case also, the content of the decision and the manner in which the decision was given should be examined in order to determine whether the Addis Ababa City Courts (refer to Proclamation No. 361/95) or the Federal High Court (refer to Proclamation No. 1183/2012) has the authority to hear the decision given by the Respondent institution on appeal. From this point of view, the file shows that the decision that was the basis for the petition was given based on the Health Professional Ethics Committee Directive issued by the city’s Food, Medicine and Health Care Administration and Control Authority (referred to as Directive No. 1/2007, while it was mentioned that it was registered as Directive No. 120/2014 when it was registered in the Ministry of Justice) after the arguments and evidence of the parties were heard. As stated in Article 37(2) of this directive, a party who believes that a violation of law or procedure has been committed in the decision can submit his/her appeal to the relevant court within 30 days of the decision being passed. Since it was not clear who the relevant court was, as indicated in the binding decision given by the Supreme Court Chamber in File No. 145733 in a similar argument, it was decided that the body with jurisdiction over the decision of the city’s executive body is the city’s court of appeal. However, it should be noted that following the issuance of the Federal Administrative Procedure Proclamation after this Supreme Court decision, the Supreme Court Chamber gave a governing decision in File No. 200289 based on Article 49 of Proclamation No. 1183/2012 stating that a review request petition on an administrative decision given by federal government executive bodies, including the Addis Ababa and Dire Dawa City Administrations, is submitted to the Federal High Court. This petition is submitted to this Supreme Court Chamber to examine the appropriateness of the decision of the lower courts in light of this Supreme Court decision. As we have examined and understood, the petition that was the basis for the decision in Supreme Court File No. 200289 was filed by Yordanos Bone Medical Center, objecting to the administrative decision given to close it for three months and return its license due to repeatedly committing similar medical errors. In the present case, on the other hand, the applicants were charged with professional misconduct and the case was examined and decided by the Ethics Committee after hearing evidence. Although it is not clearly stipulated in law that the Ethics Committee is a body with quasi-judicial power, considering that a directive has been issued and put into practice for medical professionals to provide services in accordance with professional ethics and for complaints to be examined and decided when complaints are filed, shows that the procedures under which the argument was conducted are quasi-judicial. From this point of view, there is no reason to say that giving a judicial body the power to examine whether there is an error in procedure or in the result in the judgment given by the committee is oppressive to the applicants’ rights. Therefore, it shows that there is a difference in the nature of the case decided by the Supreme Court Chamber in File No. 2002189 and the manner in which the argument was conducted in the case now submitted. If this is the case, we have not found it appropriate to apply the decision given by the Supreme Court Chamber in File No. 200289 to this case.
In conclusion, we have not found any reason to say that a fundamental error of law was committed in the decisions of both the Federal High Court’s rejection of the request to be seen under administrative procedure review system because the Applicants had a complaint on the decision approved by the institution after it was reviewed by the Institution’s Ethics Committee and they had to appeal in the court that has jurisdiction other than the Federal High Court, as well as the decision of the Federal Supreme Court’s order for the case not being an appeal as per Proclamation number 1183/2012 Article 49(1) which requires rectification at this Supreme Court level. Accordingly, we have given the following decision.
DECISION
1st/ The Federal High Court’s decision in File No. 301299 dated October 26, 2022 (Ethiopian Calendar) and the Federal Supreme Court Appellate Chamber’s order in File No. 250663 dated November 25, 2022 (Ethiopian Calendar) are upheld pursuant to Article 9(1/ሀ) of Supreme Court Procedure Directive No. 17/2015.
2nd/ Each party shall bear their own costs and expenses incurred in the proceedings before this chamber.
The case is closed and returned.
[Illegible signatures of five justices]
M/T