The European Commission of Human Rights sitting in private on
18 July 1986, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
F. ERMACORA
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Sir Basil HALL
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 (art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 31 January 1984 by
B. against the Federal Republic of Germany and registered on 20 August
1984 under file No. 11097/84;
Having regard to the report provided for in Rule 40 of the Rules of
Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they have been submitted by the applicant,
may be summarised as follows:
The applicant is a German citizen born in 1902 and resident in
Blankenrath. He is a dentist by profession and practises as a panel
doctor. Before the Commission he is represented by Mr. M. Wenger, a
lawyer practising in Frankfurt.
On 23 February 1980, the Review Board (Prüfungsausschuss) of the
Koblenz/Trier Panel Dentists' Association (Kassenzahnärztliche
Vereinigung) ordered that the applicant's fees for the years 1977 and
1978, as far as they concerned the treatment of insured persons,
should be curtailed by an amount of 24,871.32 DM to 135% of the
average of fees in the Koblenz/Trier district. The Panel Dentists'
Association is a body instituted under the German Insurance Act
(Reichsversicherungsordnung) and settles, inter alia, the panel
dentists' accounts with the health insurances. The Review Board
proceeded from the facts that the applicant's fees exceeded the said
average by more than 80% and that this had not been sufficiently
explained by him. The board concluded that the applicant's methods of
treatment were uneconomical.
On the applicant's administrative appeal (Widerspruch) the Appeal
Board (Beschwerdeausschuss) of the Koblenz/Trier Panel Dentists'
Association on 22 October 1980 partly quashed the decision of
23 February 1980. The Appeal Board found in particular that the
applicant could charge fees exceeding the average of fees in his area
by 50% in view of the special situation of his practice. It therefore
reduced the fees only by 12,781.04 DM.
The applicant's subsequent complaint (Klage) was dismissed by the
Social Court (Sozialgericht) of Mainz on 1 April 1981. Against this
judgment the applicant lodged an appeal (Berufung) with the Social
Court of Appeal (Landessozialgericht) of Rhineland-Palatinate. In an
order (Verfügung) the judge rapporteur expressed doubts as to the
lawfulness of the Board's decisions in view of their unclear
reasoning. On 11 November 1982, the Appeal Board, therefore, quashed
its previous decision and, without hearing the applicant, issued a new
decision, which was identical in substance, but reasoned in detail.
On 28 January 1982, the applicant complained about this revised
decision to the Mainz Social Court.
On 12 May 1982, the Appeal Board upon a further instruction from the
Social Court of Appeal as to the omitted hearing quashed its decision
a second time. The Board heard the applicant and took a third
decision which was again identical in substance to its two previous
decisions.
On 7 July 1982, the applicant also complained about the last mentioned
decision to the Mainz Social Court.
In two separate decisions on 6 October 1982, the Mainz Social Court
dismissed both complaints dated 28 January and 7 July 1982 as being
inadmissible. The court held that the respective revised decisions of
the Appeal Board were issues of the appeal proceedings before the
Social Court of Appeal according to S. 96 of the Social Courts' Act
(Sozialgerichtsgesetz) and could not therefore be separately
complained of. S. 96 provides for a substitution of administrative
acts at issue in social court proceedings, if they are subsequently
changed or substituted by the administrative authority.
On 4 November 1982, the applicant appealed against these decisions of
6 October 1982 to the Social Court of Appeal.
On 19 November 1982, the Social Court of Appeal ruled upon the
applicant's appeal against the Mainz Social Court's judgment of
1 April 1981, which concerned the first Appeal Board's decision of
22 October 1980, upon his complaint about the Appeal Board's second
decision of 11 November 1981 and upon his further complaint of the
Appeal Board's third decision of 12 May 1982. The court was composed
of a presiding judge, two professional and two honorary judges, the
latter having been appointed on the recommendation of the Panel
Dentists' Association. The Court declared the first two issues to be
settled and observed that S. 96 of the Social Courts' Act applied to
substitutions of administrative acts for reasons of substantial
changes as well as for reasons of procedure without substantial
changes. Insofar as the applicant had complained about the Appeal
Board's third decision of 12 May 1982, the Court partly quashed this
decision to the extent that it curtailed the applicant's fees of 1977
and dismissed the remainder of the complaint. The Court held that the
applicant's fees of 1978 were properly curtailed on the basis of a
general comparison with the average of fees charged by other dentists
in the Koblenz/Trier district. Moreover, the Court referred to the
lower averages of the applicant's subsequent accounts. After
consideration of all his objections the Court concluded that the
applicant who was represented by a lawyer failed to disprove the
assumption of uneconomical treatment. He did not substantiate special
features of his practice justifying the additional expenditures. The
Court refused leave to appeal to the Federal Social Court
(Bundessozialgericht).
On 3 March 1983, the Social Court of Appeal dismissed the applicant's
appeals against the two separate decisions of the Mainz Social Court
dated 6 October 1982. The Appeal Court found both appeals
inadmissible on the ground that the administrative acts at issue, i.e.
the Appeal Board's second decision of 11 November 1981 and its third
decision of 12 June 1982, had already been adjudged by the Appeal
Court's preceding decision of 19 November 1982. The Court did not
grant leave to appeal to the Federal Social Court.
In two separate decisions on 22 June 1983, the Federal Social Court
dismissed the applicant's two requests for leave to appeal
(Nichtzulassungsbeschwerde). The Federal Court held that the
applicant had not met the requirements of S. 160 para. 2 of the Social
Courts' Act according to which he had to show a fundamental importance
of the case, a deviation from the Federal Court's previous case law or
a violation of procedural law, respectively. The Federal Court
observed in particular that the Appeal Court had not violated the
applicant's right to a fair hearing. The taking of evidence had been
complete inasmuch as the previous instance had assumed that in any
event the further submissions did not substantiate the applicant's
claim to the full amount of his fees. Moreover, the Appeal Court's
comparison of the applicant's own accounts with each other had not
violated his right to a hearing, as it had been announced in advance.
In this respect the court stated that the previous instance had
indicated such a comparison in advance.
The applicant filed constitutional complaints against these two
decisions of 22 June 1983. He alleged in particular unfair and
improperly conducted proceedings in view of the fact that the Appeal
Board had been able to substitute its decisions twice prior to the
Regional Social Court's decision of 19 November 1982. He furthermore
complained of the global assessment of the curtailment.
In two separate decisions on 21 and 22 November 1983, the Federal
Constitutional Court (Bundesverfassungsgericht) rejected the
applicant's constitutional complaints as offering no prospect of
success. The Court found no appearance of a violation of basic rights
of the applicant. The right to a fair hearing did not regulate
details of the assessment of evidence. The applicant had not met the
requirement to show that he fulfilled a condition for leave to appeal
to the Federal Social Court and this requirement did not as such
infringe the constitutional right to a fair hearing.
COMPLAINTS
1. The applicant complains under Article 6 para. 1 (art. 6-1)
of the Convention that in the respective proceedings the German social
courts could not be considered as being impartial inasmuch as the
honorary judges were appointed on the recommendation of the Panel
Dentists' Association.
2. The applicant also complains under Article 6 para. 1
(art. 6-1) that the Social Court of Appeal instructed the Appeal Board
twice to revise its decisions. He alleges that this was not provided
for by the Social Courts' Act and infringed his right to a fair
hearing. Moreover, he was ordered by the Court to pay the costs of
the proceedings.
3. The applicant furthermore complains of the Appeal Court's
refusal to hear evidence on the question whether or not his methods of
treatment were uneconomical. He had moreover not been able to offer
evidence in respect of the fact that he had been ill for a time in
1978/1979, the Court having failed to indicate in advance that it
envisaged to compare the applicant's own accounts with each other. In
this respect the applicant also relies on Article 6 para. 1 (art. 6-1)
of the Convention.
THE LAW
1. The applicant complains under Article 6 para. 1 (art. 6-1)
of the Convention of the proceedings before the German social courts.
The Commission observes that these proceedings concerned the
curtailment of the applicant's fees as a panel doctor which were to be
paid by the local general health insurances. The first issue to be
decided is, therefore, whether or not these proceedings involved a
determination of the applicant's civil rights and obligations within
the meaning of Article 6 para. 1 (art. 6-1) of the Convention.
The Commission recalls the Convention organs' case law according to
which it is by means of private relationships with patients that
medical practitioners in private practice avail themselves of the
right to continue to practise. It follows that the right to continue
to exercise the medical profession in general is of a civil nature
within the meaning of Article 6 para. 1 (art. 6-1) of the Convention
(see Eur. Court H.R., Le Compte, Van Leuven and De Meyere judgment of
23 June 1981, Series A no. 43 para. 48 and König judgment of
23 April 1977, Series A no. 27 para. 93).
It is true that in the present case the curtailment of the applicant's
fees to be paid under the health insurance scheme did not infringe his
right to practise as a dentist. However, the Commission notes that
the special feature of settling the medical practitioners' fees under
the German health insurance scheme falls to be considered in the light
of the basically private character of the contractual relationship
between medical practitioner and patient.
In these circumstances the Commission concludes that the proceedings
at issue concerned the determination of the applicant's civil rights
and obligations within the meaning of Article 6 para. 1 (art. 6-1).
2. The applicant complains under Article 6 para. 1 (art. 6-1)
that the German social courts are in all instances composed of
professional and honorary judges. He alleges that the honorary judges
were not impartial since they were appointed on the recommendation of
the Panel Dentists' Association.
However, the Commission is not required to decide whether or not the
facts alleged by the applicant disclose any appearance of a violation
of this provision as, under Article 26 (art. 26) of the Convention, it
may only deal with a matter after all domestic remedies have been
exhausted according to the generally recognised rules of international
law.
In the present case the applicant has not shown that he raised this
complaint in his constitutional complaints before the Federal
Constitutional Court and he has, therefore, not exhausted the remedies
available to him under German law. Moreover, an examination of the
case does not disclose the existence of any special circumstances
which might have absolved the applicant, according to the generally
recognised rules of international law, from exhausting the domestic
remedies at his disposal.
It follows that, in respect of his above complaint of partiality, the
applicant has not complied with the condition as to the exhaustion of
domestic remedies and that this complaint must therefore be rejected
under Article 27 para. 3 (art. 27-3) of the Convention.
3. The applicant also complains under Article 6 para. 1
(art. 6-1) of the Convention that the Social Courts' proceedings prior
to the decision of 19 November 1982 were unfair and improperly
conducted. The proceedings violated the Social Courts' Act and led to
incorrect and unjustified results.
The Commission recalls at the outset that, in accordance with Article
19 (art. 19) of the Convention, its only task is to ensure the
observance of the obligations undertaken by the Parties in the
Convention. In particular, it is not competent to deal with an
application alleging that errors of law or fact have been committed by
domestic courts, except where it considers that such errors might have
involved a possible violation of any of the rights and freedoms set
out in the Convention (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3
pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No.
7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).
It is true that in the instant case the applicant complains under
Article 6 para. 1 (art. 6-1) of the Convention that the Social Court
of Appeal twice instructed the Appeal Board to revise its decisions in
view of procedural faults. He furthermore alleges that the Court did
not properly assess his fees, in that its conclusion of inefficiency
of treatment was based on a general comparison of his fees with the
average of fees and on a comparison of his accounts with each other.
He complains in particular that the Court did not hear the evidence
suggested.
However, the Commission finds no indication that the applicant could
not present his case properly or that his case was improperly
conducted by the respective courts. The Commission notes in
particular that the Appeal Court gave the instructions to the Appeal
Board at an early stage of the Appeal Court proceedings. Moreover,
the subsequent substitution of administrative acts which are at issue
in social courts' proceedings is provided for by S. 96 of the German
Social Courts' Act. The Commission observes that after the respective
substitutions the applicant had full opportunity to comment upon the
new aspects of his case as well as to disprove the assumption of
uneconomical treatment. Moreover, it appears from the decision of the
Federal Social Court that the comparison of the applicant's own
assessments, of which he complains, had been announced in advance, so
that he was able to make relevant submissions in time.
It follows that the applicant's above allegations do not disclose any
appearance of a violation of the rights set out in Article 6 para. 1
(art. 6-1) of the Convention. The remainder of the application is
therefore also manifestly ill-founded within the meaning of Article 27
para. 2 (art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)