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FIRST
SECTION
CASE OF PUCHSTEIN v. AUSTRIA
(Application
no. 20089/06)
JUDGMENT
STRASBOURG
28 January
2010
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Puchstein v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and André Wampach,
Deputy
Section Registrar,
Having
deliberated in private on 7 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 20089/06) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Austrian national, Mr Hans Herbert Puchstein
(“the applicant”), on 5 May 2006.
- The
applicant was represented by Mr M. Lechner, a lawyer practising in
Lochau. The Austrian Government (“the Government”) were
represented by their Agent, Ambassador F. Trauttmansdorff, Head of
the International Law Department at the Federal Ministry for European
and International Affairs.
- The
applicant alleged that the proceedings concerning his doctor’s
fees had not been dealt with within a reasonable time and that the
Regional Appeals Commission which dealt with his case had not been
impartial and independent.
- On
7 May 2008 the President of the First Section decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant lives in St Oswald.
- The applicant is a medical practitioner. He has an
individual contract (Einzelvertrag) with the Lower Austrian
Health Insurance Board (Niederösterreichische
Gebietskrankenkasse).
- In
two submissions to the Joint Arbitration Committee (Paritätische
Schiedskommission) dated 7 September 1998 and 5 October 1998, the
applicant demanded payment for laboratory tests carried out in the
first and second quarters of 1998. The claims against the Lower
Austrian Health Insurance Board amounted to 8,022.41 euros (EUR) and
EUR 6,603.81, respectively.
- The
Lower Austrian Health Insurance Board claimed that the applicant had
not participated in the test series for quality checking of
laboratory parameters in 1997, and refused to pay for the tests.
- The
applicant argued that he had participated in the quality checks in
previous years with positive results and had – as previously –
submitted the relevant samples for the period in question.
- The
Joint Arbitration Committee held an oral hearing and on 25 February
1999 it dismissed the applicant’s claim of 7 September 1998.
- The
applicant appealed against that decision to the Regional Appeals
Commission (Landesberufungskommission).
- On
17 May 1999 the applicant filed an application for transfer of
jurisdiction (Devolutionsantrag), requesting a decision on his
submission of 5 October 1998 from the Regional Appeals Commission, as
the Joint Arbitration Committee had failed to decide within the
statutory six-month time-limit.
- The
Regional Appeals Commission held a hearing and rejected both of the
applicant’s claims. The decision was dated 24 August 1999, and
was served on the applicant on 7 July 2000.
- The
applicant complained about this decision to the Constitutional Court
(Verfassungsgerichtshof). On 27 November 2000 the
Constitutional Court set aside the decision for violation of the
right to a fair hearing before an independent and impartial tribunal
established by law. It noted that one of the assessors of the
Regional Appeals Commission had negotiated the clause on remuneration
for laboratory tests on behalf of the Lower Austrian Medical
Association (Ärztekammer für Niederösterreich),
and thus the tribunal could not be regarded as impartial and/or
independent.
- An
amendment to the Social Insurance Act (Allgemeines
Sozialversicherungsgesetz) entered into force on 1 September
2002; it provided for changes in the composition of, inter alia,
the Regional Appeals Commission.
- The
newly composed Regional Appeals Commission held a hearing on 15 May
2002, during which the applicant gave evidence.
- On
24 March 2003 the applicant requested that the decision be served on
him. As the Regional Appeals Commission did not react, the applicant
repeated his demand on 18 July 2003.
- The
applicant was summoned to another hearing by a newly composed
Regional Appeals Commission on 26 November 2003. During that hearing
the entire subject was examined anew. Apparently the Regional Appeals
Commission reached a decision on the same day. It dismissed the
applicant’s claims, finding that he had failed to participate
in the required tests and had therefore not complied with the
conditions for payment of the laboratory tests. The Regional Appeals
Commission did not find any reasons to doubt the lawfulness of the
underlying provision of the Remuneration Regulation (Honorarordnung).
The decision was served on the applicant’s counsel on 30
November 2004.
- On 15
December 2004 the applicant complained to the Constitutional Court
claiming that the Regional Appeals Commission lacked independence and
impartiality. The former rejected the applicant’s complaint in
a decision of 27 September 2005. It observed that the members of the
Regional Appeals Commission were not bound by any instructions. They
were independent and impartial unless special circumstances, for
instance the fact that one member of the Regional Appeals Commission
had been involved in the negotiation of the general agreements, gave
rise to legitimate doubts about that member’s independence and
impartiality. Such special circumstances had not been shown by the
applicant in the present case. The mere fact that the assessors were
members of Regional Medial Associations or Regional Health Insurance
Boards which had provisions with the same content in their general
agreements, did not suffice to cast doubt on the independence and
impartiality of the Regional Appeals Commission. The decision was
served on counsel on 29 November 2005.
II. RELEVANT DOMESTIC LAW
- The
Social Insurance Act, which governs the composition of the Regional
Appeals Commission, provides as follows:
“341. (1) Relations between the health
insurance boards on the one hand and independent medical
practitioners and group practices on the other shall be governed by
general agreements to be concluded with the local medical
associations by the Association [of Social Insurance Boards] on
behalf of the insurance boards. General agreements shall require the
consent of the health insurance boards on behalf of which they are
concluded. The Austrian Medical Association may conclude the general
agreements on behalf of the medical associations concerned, with
their consent ...
(3) The content of the general agreement
shall be incorporated in the individual contract between the health
insurance board and the doctor or group practice. Any provisions of
the individual contract which are contrary to the provisions of a
general agreement in force in the place in which the doctor or group
practice is established shall be devoid of legal effect. ...
344. (1) In order to arbitrate and
give a decision on disputes of a legal or factual nature arising in
connection with an individual contract, a Joint Arbitration Committee
shall be established in each Land in individual cases. ...
(2) The Joint Arbitration Committee shall
consist of four members, two of whom shall be appointed by the local
Medical Association and two by the Insurance Board, which is a party
to the individual contract. ...
(4) An appeal can be lodged with the Regional
Appeals Commission against a decision given by the Joint Arbitration
Committee. ...
345. (1) For each Land, a
permanent Regional Appeals Commission shall be established. It shall
consist of a professional judge as Chairman and of four assessors.
The Chairman shall be appointed by the Federal Justice Minister. The
Chairman must be a judge who, at the time of his appointment, is
working at a court trying cases under labour and social insurance
legislation. The Federal Minister of Justice shall appoint two
assessors upon proposal of the Austrian Medical Association
respectively and two upon proposal of the Association of Social
Insurance Boards. Representatives and employees of the Regional
Health Insurance Board and members and employees of the Regional
Medical Association who are parties to the general agreement on which
the individual contract subject to the dispute is based, must not be
assessors in the respective proceedings.”
- The
above version of section 345(1) of the Social Insurance Act entered
into force on 1 September 2002. Before that date the Regional Medical
Association and the Association of Social Insurance Boards each
appointed two assessors to the Regional Appeals Commission and there
had been no provision that members and employees of the parties to
the general agreement would be excluded.
- According
to section 347(4) of the Social Insurance Act, the Regional Appeals
Commission decides by a simple majority of votes; abstention from
voting is not possible.
- The
assessors of the Regional Appeals Commission are appointed for a
renewable period of five years. They are not subject to the
hierarchical authority of the bodies which proposed their appointment
(Article 20 of the Federal Constitutional Law).
- Decisions
of the Regional Appeals Commissions are excluded from the competence
of the Administrative Court (Verwaltungsgerichtshof) by
Article 133 § 4 of the Federal Constitutional Law.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AS
REGARDS THE LENGTH OF THE PROCEEDINGS
- The
applicant complained of a violation of Article 6 § 1 of the
Convention as the proceedings had not been concluded within a
reasonable time. Article 6 § 1, in so far as relevant to the
present case, reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a ... hearing within a
reasonable time by an independent and impartial tribunal established
by law.”
- The
Government contested that argument.
A. Admissibility
- The
Government argued that the applicant had failed to exhaust domestic
remedies, as he had not complained to the Constitutional Court about
the length of the proceedings. According to the Government, there was
constant case-law of the Constitutional Court finding violations of
Article 6 § 1 on account of the length of proceedings. The case
they referred to as an example was decided on 30 September 2004. The
Government also pointed out that there had been previous decisions of
the Constitutional Court in which it stated that the length of
proceedings was excessive, albeit in a different area of law.
- The
applicant claimed that the first such decision by the Constitutional
Court had been taken on 30 September 2005; thus at the time he had
lodged his complaint with the Constitutional Court he was not obliged
to complain about the length of the proceedings before that court.
Furthermore, only in a decision of 30 November 2006 had the
Constitutional Court set aside the provision whereby every complaint
to the Constitutional Court had to contain an application to set
aside the impugned decision. Thus before that decision, the applicant
had had to apply to the Constitutional Court to set aside the
decision complained of, otherwise the Constitutional Court would not
have dealt with the case.
- The
Court has constantly held that domestic remedies have to be exhausted
if they are effective, sufficient and accessible (see Mifsud v.
France (dec.) [GC], no. 57220/00, ECHR 2002 VIII). In the
present case, the Government argued that the applicant should have
obtained a decision by the Constitutional Court to the effect that
the proceedings had been unreasonably long.
- While
the Court held in Holzinger v. Austria (no. 1) (no. 23459/94,
§ 22, ECHR 2001 I) that the effectiveness of a remedy
might depend on whether it had a significant effect on the length of
the proceedings as a whole, the Court confirmed in its judgment in
the case of Scordino v. Italy (no. 1) ([GC], no.
36813/97, § 187, ECHR 2006 V) that remedies that only
provided for compensation for a violation might also be considered
effective.
- The
Court notes that a Constitutional Court decision to the effect that
the proceedings had lasted for an unreasonably long time has neither
preventive nor compensatory effect in respect of the length of the
proceedings, but merely has declaratory effect. Such a remedy cannot
be considered effective in the light of the principles developed by
the Court and therefore the applicant was not bound to make use of
that remedy.
- In
conclusion, the Court dismisses the Government’s objection of
non-exhaustion.
- The
Court considers, in the light of the criteria established by its
case-law on the question of “reasonable time”, and having
regard to all the material in its possession, that an examination of
the merits of the complaint is required.
B. Merits
- The
applicant argued that the overall duration of the proceedings was not
in line with the requirement that proceedings be concluded within a
reasonable time. The different sets of proceedings had been brought
on 7 September 1998 and 5 October 1998, and had lasted until 29
November 2005, thus between seven years and a little more than two
months for the longest and seven years and a little more than one
month for the shortest. The case came before three levels of
jurisdiction. The applicant also maintained that no complex question
of law or fact had had to be determined.
- The
Government argued that there had hardly been any lengthy periods of
inactivity on the part of the authorities. The Regional Appeals
Commission had had to deal with complex questions of law, such as
compliance with the guarantees of Article 6 § 1 of the
Convention. Furthermore a decisive decision of the European
Commission of Human Rights, namely the decision in the Hortolomei
case (see Hortolomei v. Austria (dec.), no. 17291/90, 21 May
1997), had only been given at a rather late point in time during the
proceedings in the present case. The Government further argued that,
after the hearing on 15 May 2002, the proceedings had been prolonged
for more than two years owing to the amendment to the law that was
pending at the time. As a result, the Regional Appeals Commission had
waited for the entry into force of that amendment and only then
re-heard the case.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no.
30979/96, § 43, ECHR 2000-VII).
- The
case concerned questions of interpretation as regards the individual
contract between the applicant and the Lower Austrian Health
Insurance Board, the Remuneration Regulation being part of this
contract. It cannot be said that this matter was particularly
complex, in either the factual or the legal questions it raised.
- The
applicant’s conduct did not contribute to the length of the
proceedings.
- The
Court notes that the applicant had to lodge a request for transfer of
jurisdiction as the Joint Arbitration Commission failed to decide
within the statutory time-limit. Moreover the Court notes that four
years elapsed from the time the Constitutional Court set aside the
Regional Appeals Commission’s decision on 27 November 2000 to
the time the Regional Appeals Commission’s new decision was
served on the applicant on 30 November 2004, although the
applicant had requested to be served with the decision twice during
that period.
- Having regard to the delays attributable to the
authorities and the overall length of the proceedings, the Court
finds that the duration of the proceedings was excessive and failed
to meet the “reasonable time” requirement.
- There
has thus been a violation of Article 6 § 1 of the Convention as
regards the length of the proceedings.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AS
REGARDS THE INDEPENDENCE AND IMPARTIALITY OF THE REGIONAL APPEALS
COMMISSION
- The
applicant complained that the Regional Appeals Commission was not
independent and impartial as provided in Article 6 of the Convention.
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
applicant argued that, even though there had been a change in the law
in 2002 providing that only employees of Regional Health Insurance
Boards that were not parties to the individual contract at issue
could be members of the Regional Appeals Commission, there remained
doubts as to their independence and impartiality. First of all, two
of the assessors were employees of Regional Health Insurance Boards,
albeit of Health Insurance Boards of other Austrian regions. The
Regional Health Insurance Boards, however, were members of the
Association of Insurance Boards, which proposed the assessors.
- Furthermore,
the applicant maintained that the contractual provisions that gave
rise to the present dispute were identical throughout Austria.
Therefore, those members who worked for one of the Regional Health
Insurance Boards and sat in the Regional Appeals Commission had to
rule on contractual provisions that were identical to provisions
contained in their employers’ respective Remuneration
Regulations.
- The
Government argued that none of the assessors was subject to
instructions. The mere participation of persons representing certain
interests in the decision-making process of an authority was not a
convincing reason to doubt the independence or impartiality of the
Regional Appeals Commission. The fact that some of the assessors’
employers had similar provisions or provisions of the same type in
their Remuneration Regulations could not cast doubt on the
independence and impartiality of the Regional Appeals Commission.
- The
Government pointed out that assessors representing certain interests
played an important role in the decision-making process as their
expert knowledge and the experience gained in their profession could
assist the Chairman of the Regional Appeals Commission, a
professional judge, in assessing the specific question and thus
contribute to adequate decision-making. There were two assessors
proposed by the Association of Social Insurance Boards and two
assessors proposed by the Austrian Medical Association, so that a
balance between the specific viewpoints and interests was guaranteed.
- The
Court reiterates that in order to determine whether a tribunal can be
considered “independent” for the purposes of Article 6 §
1, regard must be had, inter alia, to the following criteria:
the manner of appointment of its members and their term of office,
the existence of safeguards against outside pressures and whether the
tribunal presents an appearance of independence. As regards the
question of “impartiality” for the purposes of Article 6
§ 1, there are two aspects to this requirement, a subjective and
an objective one. Under the subjective aspect, the tribunal must be
subjectively free of personal prejudice or bias. Under the objective
aspect, a tribunal must be impartial from an objective viewpoint,
thus it must offer sufficient guarantees to exclude any legitimate
doubt in this respect. Furthermore, it must be determined whether
there are ascertainable facts which may raise doubts as to their
impartiality. In this respect even appearances may be of a certain
importance (see Morris v. the United Kingdom, no. 38784/97, §
58, ECHR 2002-I).
- The Court will consider the issues of independence and
objective impartiality together as they are concepts that are closely
linked (see Findlay v. the United Kingdom, 25 February 1997, §
73, Reports of Judgments and Decisions 1997-I).
- The
Court has also held that lay assessors, who have special knowledge
and experience in the relevant field, contribute to a court’s
understanding of the issues before it and appear in principle to be
highly qualified in the adjudication of disputes. Moreover, the
inclusion of lay assessors is a common feature in many countries. In
particular cases, however, the assessors’ independence and
impartiality may be open to doubt (see AB Kurt Kellermann v.
Sweden, no. 41579/98, § 60, 26 October 2004).
- As
to the objective impartiality of the assessors, it is decisive
whether the balance of interest was upset and whether the lack of
such a balance would consequently lead to non-fulfilment of the
requirement of impartiality (see AB Kurt Kellermann, cited
above, § 63).
- The
case of Thaler v. Austria (no. 58141/00, 3 May 2005) concerned
similar facts before the amendment to section 345(1) of the Austrian
Social Insurance Act came into force. In that case the Court found a
violation of Article 6 § 1 in that the assessors of the Regional
Appeals Commission were appointed by and had close links with the
bodies which had concluded the general agreement challenged by the
applicant, namely the Association of Social Insurance Boards and the
Tyrol Regional Medical Association. In addition, in one set of
proceedings the two assessors were senior officials of the
applicant’s opponent in the proceedings, namely the Tyrol
Health Insurance Board.
- As
to the present case, the Court notes that as a result of the changes
in the domestic law, the assessors are no longer appointed by the
Regional Medical Association and the Association of Social Insurance
Boards, but by the Federal Minister of Justice on the proposal of the
Austrian Medical Association and the Association of Social Insurance
Boards. More importantly, employees of the Regional Health Insurance
Board and the Regional Medical Association, which are parties to the
general agreement on which the individual contract in dispute is
based, cannot be assessors in the respective Regional Appeals
Commission.
- The Court notes that the
applicant has not claimed that the above rules were not complied with
in the last set of proceedings before the Regional Appeals
Commission, which were conducted after the entry into force of the
amendment to section 345(1) of the Social Insurance Act. Thus the
assessors appointed upon the proposal of the Association of Social
Insurance Boards were not members of the Lower Austrian Health
Insurance Board, which was the applicant’s opponent in the
proceedings. The Court agrees with the Constitutional Court’s
view that the mere fact that other Regional Health Insurance Boards
have provisions in their general agreements which are similar or
identical to the provisions of the Remuneration Regulation which was
in dispute in the present case, does not suffice to cast doubt on the
independence and impartiality of the assessors. A finding to the
contrary would be tantamount to excluding lay assessors from a large
number of cases, thus depriving the Regional Appeals Commissions of
their specific expertise on the subject matter. In sum, the Court has
not found any circumstances in the present case which would have
upset the balance inherent in the participation of lay assessors in
the Regional Appeals Board.
- There
has accordingly been no violation of Article 6 § 1 of the
Convention as regards the alleged lack of independence and
impartiality of the Regional Appeals Commission.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 14,626.22 euros (EUR) in respect of pecuniary
damage and EUR 2,000 for non-pecuniary damage in compensation for the
excessive length of the proceedings. As regards the unfairness of the
proceedings, the applicant stated that he would be satisfied with the
Court’s finding of a violation.
- The
Government asserted that there was no causal link between the
violations alleged and the pecuniary damage claimed and argued that
as regards the claim in respect of non-pecuniary damage, the finding
of a violation should constitute sufficient just satisfaction.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage claimed; it therefore rejects this claim.
However, it awards the applicant EUR 2,000 in respect of the
non-pecuniary damage suffered on account of the length of the
proceedings.
B. Costs and expenses
- The
applicant also claimed EUR 2,160 for the costs and expenses incurred
before the domestic courts and EUR 4,800 for those incurred in the
Convention proceedings.
- The
Government found the claim excessive.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum.
- The
Court notes that the costs claimed in respect of the domestic
proceedings were incurred for the applicant’s complaint to the
Constitutional Court in 2004 in which he challenged the independence
and impartiality of the Regional Appeals Commission. As the Court has
not found a violation in this respect, the costs were not necessarily
incurred. The Court therefore rejects the claim. As to the costs of
the Convention proceedings, the Court considers it reasonable to
award EUR 2,000.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the length of the
proceedings;
- Holds that there has been no violation of
Article 6 § 1 of the Convention as regards the independence and
impartiality of the Regional Appeals Commission;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,000 (two
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage and EUR 2,000 (two thousand euros), plus any tax
that may be chargeable to the applicant, in respect of costs and
expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 28 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
