Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17291/90

by Rom HORTOLOMEI

against Austria

The European Commission of Human Rights (Second Chamber) sitting

in private on 21 May 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 24 September 1990

by Rom HORTOLOMEI against Austria and registered on 15 October 1990

under file No. 17291/90;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

16 October 1992 and the observations in reply submitted by the

applicant on 16 December 1992;

- the Commission's decision of 1 September 1993 to adjourn the

case;

- the Commission's decision of 16 April 1996 to communicate further

questions to the parties;

- the observations submitted by the respondent Government on

14 August 1996 and the observations in reply submitted by the

applicant on 18 October 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen born in 1950. He is a

dentist and is represented before the Commission by Mr. W. Leitner,

lawyer, of Vienna. The facts as submitted by the parties may be

summarised as follows.

The particular circumstances of the case

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.

On 3 March 1987, the applicant asked the Health Insurance Board

for a decision on whether it was in fact 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.

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.

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.

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.

The applicant had to bear the costs of the proceedings, amounting

to AS 154,421.40.

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.

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.

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.

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.

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.

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 that

the Austrian reservation to Article 6 of the Convention also applies

to the present type of proceedings.

Relevant Domestic Law

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, of whom two 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. This 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."

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.

COMPLAINTS

The applicant originally complained that the decision of the

Supreme Court of 31 January 1990 deprived him of a decision in the case

and left him having to bear the costs, in violation of Article 6

para. 1 of the Convention.

In correspondence of December 1995 to February 1996, the

applicant complained of the alleged lack of independence and

impartiality of the Regional Appeals Commission, of the absence of a

public hearing before either the Regional Appeals Commission or the

Constitutional Court, and of the length of the proceedings, all in

violation of Article 6 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 24 September 1990 and

registered on 15 October 1990.

On 13 May 1992 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

16 October 1992, after an extension of the time-limit fixed for that

purpose. The applicant replied on 16 December 1992.

On 1 September 1993 the Commission adjourned its consideration

of the case pending the outcome of the 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.

The Government submitted their second set of observations on

14 August 1996, after an extension of the time-limit fixed for that

purpose, and the applicant replied on 16 October 1996.

THE LAW

The applicant alleges violation of Article 6 (Art. 6) of the

Convention in several respects. He originally complained that he had

been deprived of a decision of the domestic courts on the merits of his

case by the Supreme Court's judgment of 31 January 1990, and

subsequently added complaints about the proceedings before the Regional

Appeals Commission and the Constitutional Court.

Article 6 para. 1 (Art. 6-1) of the Convention provides, so far

as relevant, as follows.

"1. 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. ..."

In connection with the complaints as originally made, the

Government accepted that Article 6 (Art. 6) applied to the proceedings,

but contended that the applicant had not exhausted domestic remedies

as he had not put his complaints to the new complaints procedure, and

ultimately to the Constitutional Court. They considered that, in any

event, the new structures complied with the requirements of Article 6

(Art. 6) of the Convention as the assessor members of the Regional

Appeals Commission were irremovable from office for the period of five

years, and were not bound by instructions from the organ which sent

them.

In connection with the complaints as made after the

Constitutional Court proceedings had ended, the Government re-iterate

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 reason by referring to previous

case-law.

As to the absence of an oral hearing, the Government consider,

as did the Constitutional Court, that the Austrian reservation to

Article 6 (Art. 6) of the Convention prevents the Commission from

considering the question. They consider that in any event, if the

applicant had felt a hearing before the Constitutional Court was

necessary, he could, and should, have asked for one.

The Government do not accept that the proceedings lasted

unreasonably long. They point to the considerable degree of complexity

in legal terms, in which 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 overall, the length was not

excessive.

The applicant maintains his complaints concerning the "removal"

of the successful outcome he was about to achieve in the civil

proceedings. He also 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 Guidelines which had been entered into

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.

As to the length of the proceedings, the applicant 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.

The Commission notes that the Government's original contention

that the application was inadmissible for non-exhaustion of domestic

remedies because the applicant had not put his complaints to the

Constitutional Court is no longer applicable, as the proceedings before

the arbitration organs and the Constitutional Court have ended.

The Commission considers, in the light of the parties'

submissions, that the case raises complex issues of law and fact under

the Convention, the determination of which should depend on an

examination of the merits of the application. The Commission

concludes, therefore, that the application is not manifestly ill-

founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other grounds for declaring it inadmissible have been

established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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