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FIRST
SECTION
CASE OF STECHAUNER v. AUSTRIA
(Application
no. 20087/06)
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 Stechauner 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. 20087/06) 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 Michael Stechauner
(“the applicant”), on 3 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 or independent.
- On
2 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 Großau.
- The
applicant is a practitioner of general medicine. He has an individual
contract (Einzelvertrag) with the Lower Austrian Health
Insurance Board (Niederösterreichische Gebietskrankenkasse).
The applicant has also obtained special diplomas in the areas of
echocardiology and sonography and performs these types of examination
on his patients.
- One
part of the individual contract between the applicant and the Lower
Austrian Health Insurance Board is the Remuneration Regulation
(Honorarordnung) which states that certain types of
examinations will only be reimbursed if they are performed by a
specialist doctor.
- The
Lower Austrian Health Insurance Board refused to reimburse
echocardiologic and sonographic examinations as the applicant was not
a specialist doctor but a general practitioner.
- On
2 February 1998 the applicant claimed payment for echocardiologic and
sonographic services amounting to 1,900.31 euros (EUR) for the third
quarter of 1997 before the Joint Arbitration Committee (Paritätische
Schiedskommission); on 23 April 1998 he submitted another claim
for payment amounting to EUR 1,896.65 for the fourth quarter of 1997;
at an unknown date this claim for payment was increased to
EUR 1,944.57. On 6 July 1998 the applicant submitted a claim for
payment of EUR 1,184.81 for the first quarter of 1998.
- The
Joint Arbitration Committee held hearings on 1 April 1998 and 16
September 1998.
- As
the Joint Arbitration Committee did not reach a decision because of a
tie, the applicant filed an application for transfer of jurisdiction
(Devolutionsantrag) to the Regional Appeals Commission
(Landesberufungskommission) on 2 July 1998 and 7 October 1998,
respectively.
- Meanwhile,
on 6 October 1998 the applicant had claimed payment for
echocardiologic and sonographic services amounting to EUR 1,169.75
for the second quarter of 1998. At a later date this claim was
reduced to EUR 1,098.63.
- On
25 November 1998 the Regional Appeals Commission refused to grant the
applicant’s claims concerning the third and fourth quarters of
1997 and the first quarter of 1998.
- On
12 April 1999 the applicant complained to the Constitutional Court
(Verfassungsgerichtshof) which, on 27 November 2000, set aside
the decision of the Regional Appeals Commission of 25 November 1998.
It found that the applicant’s right to have his case heard by
an impartial tribunal had been violated as one of the assessors
nominated by the Lower Austrian Medical Association had negotiated
the disputed clause of the Remuneration Regulation. Consequently, the
Regional Appeals Commission did not appear independent and impartial.
- As
regards the claim for the second quarter of 1998, the applicant had
filed an application for transfer of jurisdiction to the Regional
Appeals Commission on 6 April 1999 owing to a tie in the Joint
Arbitration Committee. As at that time the applicant’s
complaint against the decision of 25 November 1998 was pending before
the Constitutional Court, the Regional Appeals Commission decided to
stay the proceedings until the Constitutional Court had given its
decision. On an unknown date the Regional Appeals Commission decided
to join the proceedings in respect of all the applicant’s
claims, that is to say; those for the third and fourth quarter of
1997 and for the first and second quarters of 1998.
- After
the Constitutional Court had set aside the Regional Appeals
Commission’s decision of 25 November 1998, the newly composed
Regional Appeals Commission again rejected the applicant’s
claims on 19 September 2001.
- The
applicant complained to the Constitutional Court that there had not
been a public hearing. The Constitutional Court set aside the
contested decision for the lack of a public hearing in a decision of
25 November 2002.
- On
26 November 2003 the Regional Appeals Commission held a public
hearing. On 20 December 2004 the Regional Appeals Commission rejected
the applicant’s claims, holding that it was up to the parties
to the general agreement to limit direct reimbursement of certain
services to specialist doctors. Such limitations served the planning
and administration of affordable healthcare services and were
objectively justified.
- On
29 December 2004 the applicant complained to the Constitutional
Court, alleging a breach of the principle of equal treatment and lack
of independence and impartiality of the Regional Appeals Commission.
- On 27
September 2005 the Constitutional Court found no violation of the
right to a fair hearing and upheld the contested decision. It held
that the assessors of the Regional Appeals Commission were
independent in exercising their duties and that no circumstances
giving rise to doubts about their impartiality or independence had
arisen in the present case. In particular, none of the assessors of
the Regional Appeals Commission had been involved in the conclusion
of the general agreement or of the individual contract at issue in
the proceedings. The mere fact that the assessors were members of
Regional Medical Associations or Regional Health Insurance Boards
which had provisions of the same content in their general agreements
was not sufficient to cast doubt on their impartiality. This decision
was served on counsel on 29 November 2005.
II. RELEVANT DOMESTIC LAW
- The
relevant provisions of the Social Insurance Act (Allgemeines
Sozialversicherungsgesetz) read 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 the
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. ...”
- Section
345(1) governs the composition of the Regional Appeals Commission:
“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.
- Under
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 concerning 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
Government further argued that the applicant had failed to exhaust
domestic remedies as regards his claim for reimbursement for the
second quarter of 1998. The Regional Appeals Commission had formally
adjourned the proceedings in order to wait for the outcome of the
complaint to the Constitutional Court and the applicant had failed to
challenge that adjournment decision.
- 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 revoked 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
the light of the fact that a complaint against a decision concerning
three out of his four claims for remuneration was pending before the
Constitutional Court, the applicant was also not obliged to appeal
against the Regional Appeal Commission’s decision to stay the
proceedings as regards his claim for the second quarter of 1998. The
Government have failed to show that such an appeal would have
accelerated the proceedings.
- 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
between 2 February 1998 and 6 October 1998, and had lasted until
29 November 2005, thus more than seven years and nine 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 admitted that the overall duration of the proceedings had
been long, however they also argued that there had hardly been any
lengthy periods of inactivity on the part of the authorities. Also
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
Court reiterates that the reasonableness of the length of the
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 that 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 first set of
proceedings before the Constitutional Court took one year and eight
months until the service of the Constitutional Court’s
decision. Furthermore there was a delay of two years and one month
between the Constitutional Court’s decision on 25 November
2002 and the next decision issued by the Regional Appeals Commission
on 20 December 2004.
- 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 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 general agreement 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 its
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 issue 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 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 interests 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 nominated 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
Commissions.
- 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 6,123.32 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 as regards 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
