HORTOLOMEI v. AUSTRIA

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 17291/90

Rom Hortolomei

against

Austria

REPORT OF THE COMMISSION

(adopted on 16 April 1998)

TABLE OF CONTENTS

Page

I.INTRODUCTION

(paras. 1-17)1

A.The application

(paras. 2-4)1

B.The proceedings

(paras. 5-12)1

C.The present Report

(paras. 13-17)              2

II.ESTABLISHMENT OF THE FACTS

(paras. 18-31)              3

A.The particular circumstances of the case

(paras. 18-29)              3

B.Relevant domestic law

(paras. 30-31)              4

III.OPINION OF THE COMMISSION

(paras. 32-63)              6

A.Complaints declared admissible

(para. 32)6

B.Points at issue

(paras. 33-34)              6

C.As regards the judgment of 31 January 1990

(paras. 35-39)              6

CONCLUSION

(para. 39) 7

D.As regards the alleged lack of independence and impartiality                             of the bodies conducting the administrative proceedings

(paras. 40-51)               7

CONCLUSION

(para. 51) 9

E.As regards the absence of a public hearing

(paras. 52-54)               9

CONCLUSION

(para. 54) 9

F.As regards the length of the proceedings

(paras. 55-59)               9

CONCLUSION

(para. 59)10

G.Recapitulation

(paras. 60-63)              10

DISSENTING OPINION OF Mr K. HERNDL11

APPENDIX :DECISION OF THE COMMISSION AS TO THE

        ADMISSIBILITY OF THE APPLICATION              13

I.INTRODUCTION

1.The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A.The application

2.The applicant is Austrian citizen, born in 1950 and resident in Vienna.  He was represented before the Commission by Mr W. Leitner, a lawyer, Vienna.

3.The application is directed against Austria.  The respondent Government were represented by Mr F. Cede, Agent of the Austrian Federal Government.

4.The case concerns proceedings to determine the nature of a contract between the applicant and the Regional Health Insurance Board.  The applicant invokes Article 6 of the Convention.

B.The proceedings

5.The application was introduced on 24 September 1990 and registered on 15 October 1990.

6.On 13 May 1992 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7.The Government's observations were submitted on 16 October 1992 after an extension of the time-limit fixed for this purpose.  The applicant replied on 16 December 1992.

8.On 1 September 1993 the Commission adjourned its consideration of the case pending the outcome of proceedings before the Constitutional Court. The Commission resumed its consideration of the case on 16 April 1996, when it decided to put further questions to the parties on the admissibility and merits of the case.

9.The Government submitted their second set of observations on 14 August 1996 after an extension of the time-limit fixed for this purpose.  The applicant replied on 16 October 1996.

10.On 21 May 1997 the Commission declared the application admissible.

11.The text of the Commission's decision on admissibility was sent to the parties on 2 June 1997 and they were invited to submit such further information or observations on the merits as they wished.

12.After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C.The present Report

13.The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MMJ.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

MrsG.H. THUNE

MMF. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. ŠVÁBY

P. LORENZEN

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

A. ARABADJIEV

14.The text of this Report was adopted on 16 April 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

15.The purpose of the Report, pursuant to Article 31 of the Convention, is:

(i)to establish the facts, and

(ii)to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

16.The Commission's decision on the admissibility of the application is annexed hereto.

17.The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II.ESTABLISHMENT OF THE FACTS

A.The particular circumstances of the case

18.The applicant entered into a contract with the Lower Austrian Regional Health Insurance Board (Niederösterreichische Gebietskrankenkasse).  The contract was expressed to be for a fixed period, namely from 1 April 1986 to 31 March 1987.  On 19 February 1987 the Health Insurance Board wrote to the applicant that his contract would expire on 31 March 1987, justifying the expiration by reference to various allegations of unprofessional behaviour.  The applicant states that these allegations were subsequently shown to be without foundation in disciplinary proceedings against him. 

19.On 3 March 1987, the applicant asked the Health Insurance Board for a decision on whether it was at all possible to enter into a fixed term contract with a Health Insurance Board (rather than an indefinite contract).  That request was rejected on 16 July 1987 by the Regional Joint Arbitration Committee (paritätische Schiedskommission) on the ground that the letter of 19 February 1987 was not a termination of a contract but a mere statement that the fixed term contract was to expire on a certain date.  The applicant's appeal to the Federal Joint Arbitration Committee was dismissed on 18 January 1988.

20.On 27 May 1987 the applicant introduced a civil action with the Vienna Regional Court (Landesgericht) for a declaration that he was still under contract with the Regional Health Insurance Board.  The action was transferred to the St. Pölten Regional Court, as the competent court, on 24 June 1987. 

21.On 27 January 1989 the St. Pölten Regional Court found in the applicant's favour on the ground that it was not possible under Austrian law for Regional Health Insurance Boards to enter into fixed-term contracts with dentists, save in certain special cases which did not apply.  The Vienna Court of Appeal (Oberlandesgericht) on 9 June 1989 agreed with the St. Pölten Regional Court. 

22.The Regional Health Insurance Board appealed to the Supreme Court (Oberster Gerichtshof) which, on 31 January 1990, found, inter alia, that, with the entry into force of the 48th amendment to the Social Insurance Law (Allgemeines Sozialversicherungsgesetz, BGBl. 1989/642), the civil courts were no longer competent to deal with disputes on validity of contracts between doctors and the Health Insurance Boards.  The amendment contained no transitional provisions, and in the absence of any provision permitting transfer of the case to a Joint Arbitration Committee under the new law, the Supreme Court could only quash the entire proceedings to that date.

23.The applicant had to pay the costs of the proceedings, amounting to AS 154,421.40. 

24.The newly constituted Joint Arbitration Committee failed to take a decision in the further proceedings brought by the applicant within the six months provided for by law, and the case was remitted to the Regional Appeals Commission (Landesberufungskommission).  The Regional Appeals Commission rejected the applicant's complaint on 12 May 1992.

25.In September 1992, the applicant became aware of Guidelines agreed in 1985 between the Regional Health Insurance Board and the Lower Austrian Medical Association (Ärztekammer).  The Guidelines provide, inter alia, that new Health Insurance Board doctors should be given an initial fixed-term contract of one year.

26.On 30 September 1993 the Constitutional Court (Verfassungsgerichtshof) quashed the decision of the Regional Appeals Commission on the ground that it infringed the applicant's constitutional right to have his case dealt with by an independent and impartial tribunal within the meaning of Article 6 of the Convention because one member of the Commission had been involved in the "termination" of the applicant's contract in 1986.  The Constitutional Court did not accept the applicant's claim that the Regional Appeals Commission was not independent and impartial by virtue of its composition: it referred to previous case-law (VfSlg 9878/1983 and 12470/1990) which had considered that the Regional Appeals Commissions were independent and impartial because of the term of office of the members and because members were not bound to accept instructions from the executive.

27.On 6 April 1994 the Lower Austrian Regional Appeals Commission confirmed its decision rejecting the request for a declaration that the applicant's contract was indefinite.  The decision states that an oral hearing was held.

28.On 21 July 1994 the applicant filed an appeal with the Constitutional Court. In addition to the complaints concerning the composition of the Regional Appeals Commission, the applicant also alleged arbitrariness on the part of the Regional Appeals Commission as its decision was tainted by the presence of four (out of five) members who represented the opposite party, and because the ordinary courts had agreed, with a simple and coherent reasoning, with the applicant. 

29.The Constitutional Court dismissed the appeal on 25 September 1995, received by the applicant's representative on 10 October 1995.  The Constitutional Court did not accept that the Regional Appeals Commission had decided arbitrarily: the mere fact that the Commission came to a different conclusion from the ordinary courts was not conclusive, and the Regional Appeals Commission's decision was detailed.  As regards the composition of the Regional Appeals Commission, the Constitutional Court referred to its decision of 30 September 1993.  It added that it was not required to determine whether the law had been properly applied.  As to the question of publicity, the Constitutional Court referred to its own case-law according to which the Austrian reservation to Article 6 of the Convention also applies to the present type of proceedings.

B.Relevant domestic law

30.The new version of the Social Insurance Law (Allgemeines Sozialversicherungsgesetz), which entered into force on 1 January 1990, provides as follows:

(Translation)

"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 local Medical Association and the Association of Insurance Boards each provide two assessors."

31.The non-judicial members of the Regional Appeals Commissions are not subject to the hierarchical authority of the bodies which sent them (Article 21 of the Federal Constitutional Law).  Decisions of the Regional Appeals Commissions are excluded from the competence of the Administrative Court (Verwaltungsgerichtshof) by Article 133 para. 4 of the Federal Constitutional Law.

III.OPINION OF THE COMMISSION

A.Complaints declared admissible

32. The Commission has declared admissible the applicant's initial complaints, that he was deprived of a decision of the domestic courts by the Supreme Court's judgment of 31 January 1990, and his subsequent complaints concerning the alleged lack of independence and impartiality of the bodies which dealt with the case after 31 January 1990, the absence of a public oral hearing, and the total length of the proceedings.

B.Points at issue

33. The points at issue are:

-Whether there has been a violation of Article 6 para. 1

(Art. 6-1) of the Convention in that the Supreme Court judgment of 31 January 1990 quashed the proceedings up to that date;

-Whether there has been a violation of Article 6 para. 1

(Art. 6-1) of the Convention as regards the alleged lack of independence and impartiality of the bodies conducting the               proceedings;

-Whether there has been a violation of Article 6 para. 1

(Art. 6-1) of the Convention in that no public hearing was held in the renewed administrative proceedings, and

-Whether there has been a violation of Article 6 para. 1

(Art. 6-1) of the Convention as regards the length of the proceedings.

34. Article 6 para. 1 (Art. 6-1) of the Convention provides, so far as relevant, as follows:

"In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.  Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

C.As regards the judgment of 31 January 1990

35. The applicant maintains his initial complaint of denial of access to court.  He claims that the legislator should not be permitted to intervene in pending proceedings in such a way as conclusively to influence the outcome, and that in any event, the subsequent proceedings did not provide the access to court which Article 6 para. 1 (Art. 6-1) of the Convention requires.

36. The Government claim that the quashing by the Supreme Court of the proceedings up to 31 January 1990 did not deny the applicant access to court because it remained open to him to put his complaints to the new complaints procedure, as he in fact did.

37. The Commission notes that the effect of the Supreme Court's judgment of 31 January 1990 was not the same as a normal judgment of a supreme court whereby proceedings are quashed and the case remitted to the lower courts, or whereby the supreme court itself gives the judgment in the case.  Rather, after 31 January 1990, the applicant was indeed in a position where the proceedings he had brought no longer existed before any tribunal.

38. However, Article 6 para. 1 (Art. 6-1) of the Convention guarantees not the right to a specific court or a specific system of courts, but rather the right to have civil rights and obligations determined by "an independent and impartial tribunal".  Given that it was open to the applicant to pursue his claims before the new administrative authorities, and given that he did so pursue them, the Commission considers that the question of access to court can most appropriately be dealt with in connection with the question of whether the subsequent administrative proceedings afforded the guarantees of Article 6 (Art. 6).

CONCLUSION

39. The Commission concludes, unanimously, that the question of whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention in that the Supreme Court judgment of 31 January 1990 quashed the proceedings up to that date gives rise to no issues separate from those arising in connection with the subsequent administrative proceedings.

D.As regards the alleged lack of independence and impartiality of the bodies conducting the administrative proceedings

40. The applicant maintains his claims that the Regional Appeals Commission cannot be independent and impartial as - notwithstanding the period of office and the lack of direct instructions to the members - he was nevertheless challenging a structure put in place by the two bodies which had sent the assessors.  He considers that even if in general the requirements of Article 6 (Art. 6) are met by having representatives of Health Insurance Boards and Medical Associations on the Regional Appeals Commissions, in the present case, the presence of those members gave rise to the violation.

41. The Government underline their view that the proceedings before the Regional Appeals Commission complied with the requirements of Article 6 (Art. 6) of the Convention as to independence and impartiality, noting that the Constitutional Court quashed the Appeals Commission's decision of 12 May 1992 on the ground that one participant should not have been involved in the decision.  They underline that the Convention does not preclude the participation of expert members on specialised bodies, and draw attention to the irremovability from office and the independence from instructions from the executive.  They add that in any event, the Constitutional Court - which is fully independent and impartial - thereafter dealt with the applicant's constitutional complaints in great detail, and gave reasons for its decision by referring to previous case-law.

42. The Commission recalls that in order to establish whether a body can be considered "independent", regard must be had, inter alia, to the manner of appointment of its members and their term of office, to the existence of guarantees against outside pressure and to the question whether the body presents an appearance of independence.  As to the question of impartiality, a distinction must be drawn between a subjective test, whereby it is sought to establish the personal conviction of a given judge in a given case, and an objective test, aimed at ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (Eur. Court HR, Langborger v. Sweden judgment of 22 June 1989, Series A no. 155, p. 16, para. 32).

43. The Lower Austrian Regional Appeals Commission which finally rejected the applicant's request for a declaration that his contract was indefinite was composed, pursuant to the provisions of Section 345 of the Social Insurance Law, of a professional judge and four assessors.  Two of the assessors were provided by the local Medical Association, and two were provided by the Association of Insurance Boards.

44. The independence and impartiality of the professional judge is not at issue.  The Commission must, however, consider the position of the four assessors.

45. There is no reason to doubt the personal impartiality of the four assessors in the absence of any proof to the contrary.

46. As regards the four assessors' objective impartiality and the question whether they presented an appearance of independence, however, the Commission notes that they had been nominated by, and had close links with, the bodies which had adopted the Guidelines in 1985, providing for fixed term contracts.  As the applicant was challenging the effects of those Guidelines, he could legitimately fear that the assessors - notwithstanding their five year terms of office and formal independence of the executive - had a common interest contrary to his own and therefore that the balance of interests, inherent in the sending of representatives of the medical profession and the Health Insurance Boards in other cases, was liable to be upset in his case.

47. The Regional Appeals Commission did not therefore present the necessary appearance of independence and impartiality.

48. The Commission recalls that even where an adjudicatory body determining disputes over "civil rights and obligations" does not comply with Article 6 para. 1 (Art. 6-1) in some respects, no violation can be found if the proceedings before that body are "subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6 para. 1 (Art. 6-1)" (Eur. Court HR, Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 16, para. 40 with further references).  The Commission must therefore consider whether the subsequent review by the Constitutional Court was sufficient to remedy the inadequacies of the Regional Appeals Commission, as the Government contend.

49. The European Court of Human Rights has held that the Constitutional Court was not able to examine all the relevant facts as it only inquired into contested proceedings from the point of view of their conformity with the Constitution (Eur. Court HR, Zumtobel v. Austria judgment of 21 September 1993, Series A no. 268-A, p. 13, para. 30).  The position is similar in the present case.  The Constitutional Court did, it is true, give reasons for its decision, but that decision was based solely on the compatibility with the Constitution of the proceedings.  It was not open to the Constitutional Court to consider errors of ordinary (as opposed to constitutional) law, and indeed the Constitutional Court emphasised the point in its decision.

50. Thus the fact that the independence and impartiality of the Constitutional Court are not at issue cannot remedy the lack of such independence and impartiality before the Regional Appeals Commission because the Constitutional Court did not have the "full jurisdiction" required of a review of administrative decisions.  No access lay to the Administrative Court.

CONCLUSION

51. The Commission concludes, by 15 votes to 1, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention as regards the alleged lack of independence and impartiality of the proceedings.

E.As regards the absence of a public hearing

52. The applicant complains that no public hearing was held before either the Regional Appeals Commission or the Constitutional Court.  The Government consider that the question is covered by the Austrian reservation to Article 6 (Art. 6) of the Convention, but that in any event the applicant failed to request a hearing before the Constitutional Court.

53. In the light of its conclusions concerning the independence and impartiality of the Regional Appeals Commission, the Commission does not consider it necessary to determine this question (cf. the above-mentioned Langborger v. Sweden judgment, p. 17, para. 37).

CONCLUSION

54.The Commission concludes, unanimously, that it is not necessary to consider whether there has been a violation of Article 6 para. 1

(Art. 6-1) of the Convention in that no public hearing was held in the renewed administrative proceedings.

F.As regards the length of the proceedings

55. The applicant claims that the proceedings lasted unreasonably long.  He points out that the dispute was not complicated, and that the ordinary courts took two years and one month to deal with the case at first instance and on appeal, including jurisdictional questions.  He ascribes the subsequent length of the proceedings to the administrative organs' inability to reach sound legal decisions.  The applicant accepts that he initially applied for the civil proceedings to be brought in Vienna, and that he subsequently had them transferred to St. Pölten.  He does not accept that the initial forum was wrong - the Lower Austrian Health Insurance Board has an office in Vienna - but underlines that in any event no more than one month was lost.

56. The Government do not accept that the proceedings lasted unreasonably long.  They point to the considerable degree of complexity in legal terms, to the fact that the courts and the arbitration boards came to different conclusions, and to the change in the legal situation brought about by the 48th amendment to the Social Insurance Act.  They also note that the applicant initially submitted his claim to the wrong civil court, and that the civil proceedings were speedily dealt with by the courts: three instances dealt with the case to 31 January 1990, when the Supreme Court quashed the proceedings.  The Government accept that the proceedings before the various commissions then lasted until 25 September 1995, but consider that the total length was not excessive.

57.The Commission recalls that the reasonableness of the length of proceedings must be assessed with reference to the established criteria namely, the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case and in light of the particular circumstances of the case (Eur. Court HR, Vernillo v. France judgment of 20 February 1991, Series A no. 198, p. 12, para. 30; see also Eur. Court HR, Obermeier v. Austria judgment of 28 June 1990, Series A no. 179, p. 23, para. 72, a case which also concerned administrative proceedings).  In the present case, those circumstances call for a global assessment, so that the Commission does not consider it necessary to consider these questions in detail.

58. The Commission notes that the proceedings lasted from 27 May 1987 until 10 October 1995, when the applicant's representative received the Constitutional Court's second decision in the case, that is a total of eight years and four and a half months.  The ordinary civil courts disposed of the case in two years and eight months, such that the legal and factual issues cannot have been particularly complex.  The only delay which can be ascribed to the applicant is the month which was lost when the applicant brought the original civil proceedings in Vienna rather than in St. Pölten.  In these circumstances, where the applicant was required to bring civil proceedings and then administrative proceedings in his attempt to vindicate his rights as he perceived them, the Commission considers that an overall period of eight years and four and a half months exceeds the "reasonable time" requirement contained in Article 6 para. 1 (Art. 6-1) of the Convention. 

CONCLUSION

59. The Commission concludes, by 15 votes to 1, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention as regards the length of the proceedings.

G.Recapitulation

60. The Commission concludes, unanimously, that the question of whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention in that the Supreme Court judgment of 31 January 1990 quashed the proceedings up to that date gives rise to no issues separate from those arising in connection with the subsequent administrative proceedings (para. 39).

61. The Commission concludes, by 15 votes to 1, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention as regards the alleged lack of independence and impartiality of the proceedings (para. 51).

62.The Commission concludes, unanimously, that it is not necessary to consider whether there has been a violation of Article 6 para. 1

(Art. 6-1) of the Convention in that no public hearing was held in the renewed administrative proceedings (para. 54).

63. The Commission concludes, by 15 votes to 1, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention as regards the length of the proceedings (para. 59).

   M.-T. SCHOEPFER                               J.-C. GEUS

      Secretary                                   President

to the Second Chamber                      of the Second Chamber

(Or. English)

DISSENTING OPINION OF Mr K. HERNDL

Regrettably I am not able to subscribe to the main conclusions at which the majority arrived in the present case, namely (1) that there has been a violation of Article 6 para. 1 of the Convention as regards the alleged lack of independence and impartiality of the proceedings (para. 51 of the Report) and (2) that there has been a violation of Article 6 para. 1 of the Convention as regards the length of the proceedings (para. 59 of the Report).             

I.The impartiality and independence of the decision-making organ ("The Lower Austrian Regional Appeals Commission")

1.Generally speaking, the Appeals Commission has all attributes of an independent tribunal in conformity with Article 6 para. 1 of the Convention.  This was inter alia confirmed by the Austrian Constitutional Court which examined that particular aspect in earlier proceedings and twice in connection with the complaints emanating from the applicant (see para. 26 of the Report).  It would appear from the findings of the majority in the present case that in principle this view is also shared by them. 

2.After applying the "Langborger test" (Eur. Court HR, Langborger v. Sweden judgment of 22 June 1989, Series A no. 155, p. 16 para. 32: "As to the question of impartiality, a distinction must be drawn between a subjective test, whereby it is sought to establish the personal conviction of a given judge in a given case, and an objective test, aimed at ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect") the majority, while affirming that there was no reason to doubt the personal impartiality of the lay assessors (see para. 45 of the Report) conclude that all four assessors, including the two medical assessors, lacked the necessary objective impartiality.

The reason given for this opinion is that even the two medical assessors - the purpose of whose presence on the Appeals Commission was to ensure the necessary balance in the decision-making process and to take into account the legitimate interest of any physician-party to the dispute - had a common interest contrary to the applicant's and "that the balance of interests, inherent in the sending of representatives of the medical profession and the Health Insurance Boards in other cases, was liable to be upset" (see para. 46 of the Report).

This is a conclusion difficult to understand.  What was at stake for the applicant was the validity, or rather the continued validity, of a private contract concluded between an individual physician and the competent Health Insurance Board on the basis of a "blanket agreement" between the Health Insurance Board and the Medical Association concluded years earlier, as authorised by law.  Assuming, as the majority does, that the assessors nominated by the Health Insurance Board could be regarded as being dependent on their organisation, the same cannot be said to be true of the medical assessors.

There is nothing to show that the two medical assessors had taken part in the formulation of the blanket agreement and any guidelines based thereon, nor is there any element which would support the view that maintaining the challenged clause of the guidelines was necessarily in the interest of the participating medical assessors, the medical profession as such or even the Medical Association as a collective entity.  There was in my view no clash of interest, as is presupposed by the majority.  On the contrary:  it could rather be assumed that the interest of the medical assessors was more or less identical to that of the applicant's, namely to find, if that were possible, that the contract in question was of unlimited duration.

3.Moreover, the applicant has appealed to the Constitutional Court raising precisely the issue of the alleged lack of impartiality of the Appeals Commission (its medical members) and connected issues.  In fact, the issues he brought before the Constitutional Court were the alleged bias of the Appeals Commission, the alleged arbitrariness of the action and the decision of that body, the character of the Appeals Commission as not being an independent and impartial tribunal and, finally, the lack of an oral hearing.  It can therefore not be argued that the Constitutional Court did not have competence to address exactly the issues which the applicant placed before it.  Hence there was in any event a final assessment, in particular of all issues which would come under Article 6, by an authority which undoubtedly possessed the qualifications of an independent and impartial tribunal.

II.The length of the proceedings

While the overall length - more than eight years - may appear on surface as rather unusual, an analysis of the proceedings shows that the matter was indeed of great complexity as it had to be dealt with by many different administrative, arbitration and judicial instances. 

1987-19882 instances:Health Insurance Board

Federal Joint Arbitration Committee

1988-19903 judicial instances:Regional Court

Court of Appeal

Supreme Court

1990-19922 arbitration instances:Joint Arbitration Committee (as                                                                                     newly established)

Regional Appeals Commission (as                                                                                                   newly established)             

1992-19931 instance:Constitutional Court (first proceedings,resulting in the decision of the Regional Appeals Commission being quashed)

19941 instance:Regional Appeals Commission

1994-19951 instance:Constitutional Court (second proceedings resulting in final dismissal of the complaint).

In view of the complex legal situation which the applicant as well as the authorities faced in the present case, it would not seem justified to call the length of those proceedings unreasonable.  The length of those proceedings is neither due to the conduct of the applicant nor to that of the various organs of the respondent State.  Rather, the length, unusual as it may be, must be seen as the result of a complicated objective situation.

 

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