CASE OF PUCHSTEIN v. AUSTRIA

FIRST SECTION

CASE OF PUCHSTEIN v. AUSTRIA

(Application no. 20089/06)

JUDGMENT

STRASBOURG 

28 January 2010

FINAL

28/04/2010

This judgment has become final under 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

1. 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.

2. 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.

3. 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.

4. 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

5. The applicant lives in St Oswald.

6. The applicant is a medical practitioner. He has an individual contract (Einzelvertrag) with the Lower Austrian Health Insurance Board (Niederösterreichische Gebietskrankenkasse).

7. 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.

8. 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.

9. 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.

10. The Joint Arbitration Committee held an oral hearing and on 25 February 1999 it dismissed the applicant’s claim of 7 September 1998.

11. The applicant appealed against that decision to the Regional Appeals Commission (Landesberufungskommission).

12. 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.

13. 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.

14. 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.

15. 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.

16. The newly composed Regional Appeals Commission held a hearing on 15 May 2002, during which the applicant gave evidence.

17. 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.

18. 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.

19. 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

20. 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.”

21. 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.

22. 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.

23. 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).

24. 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

25. 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.”

26. The Government contested that argument.

A. Admissibility

27. 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.

28. 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.

29. 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.

30. 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.

31. 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.

32. In conclusion, the Court dismisses the Government’s objection of non-exhaustion.

33. 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

34. 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.

35. 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.

36. 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).

37. 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.

38. The applicant’s conduct did not contribute to the length of the proceedings.

39. 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.

40. 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.

41. 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

42. The applicant complained that the Regional Appeals Commission was not independent and impartial as provided in Article 6 of the Convention.

43. The Government contested that argument.

A. Admissibility

44. 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

45. 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.

46. 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.

47. 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.

48. 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.

49. 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).

50. 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).

51. 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).

52. 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).

53. 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.

54. 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.

55. 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.

56. 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

57. 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

58. 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.

59. 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.

60. 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

61. 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.

62. The Government found the claim excessive.

63. 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.

64. 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

65. 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

1. Declares the application admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the length of the proceedings;

3. 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;

4. 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;

5. 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 WampachChristos Rozakis
Deputy RegistrarPresident

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