FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 58141/00 by Michael THALER against Austria

The European Court of Human Rights (First Section), sitting on 15 September 2003 as a Chamber composed of

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mr G. Bonello , Mrs F. Tulkens , Mrs S. Botoucharova , Mr A. Kovler , Mrs E. Steiner, judges , and Mr S . Nielsen , Deputy Section Registrar ,

Having regard to the above application lodged on 14 April 2000,

Having regard to the partial decision of 4 July 2002,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Michael Thaler, is an Austrian [Note1] national, who was born in 1944 and lives in Innsbruck (Austria). He is represented before the Court by Mr B. Oberhofer, a lawyer practising in Innsbruck (Austria).

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is a medical practitioner whose contract with the Tyrol Regional Health Insurance Board ( Gebietskrankenkasse ) was terminated by the latter on 31 December 1996. Subsequently the applicant was practising without contract with the Health Insurance Board and is meanwhile retired. He complains about two sets of proceedings.

1. The first set of proceedings

On 29 October 1996 the applicant instituted proceedings against the Tyrol Regional Health Insurance Board. He claimed that the defendant had to pay an additional amount of ATS 120 for honoraria.

On 2 April 1997 the Joint Arbitration Committee ( Paritätische Schiedskommission ) dismissed the applicant’s claim. The applicant appealed against this decision.

On 2 July 1998 the Regional Appeals Commission ( Landesberufungskommission ) dismissed the appeal.

On 25 September 1998 the applicant lodged a complaint with the Constitutional Court. He alleged, inter alia , that the contract between the Association of Insurance Boards ( Hauptverband der Sozialversicherungsträger ) and the Tyrol Medical Association ( Ärztekammer ) on which his honoraria was based violated his constitutional right to non-discrimination ( Recht auf Gleichheit ).

On 15 April 1999 he amended his complaint and alleged that the Regional Appeals Commission was no independent and impartial tribunal within the meaning of Article 6 of the Convention by virtue of its composition.

On 17 December 1999 the Constitutional Court dismissed the complaint. It did not accept that the Regional Appeals Commission’s decision had violated the applicant’s constitutional rights. As regards the composition of the Regional Appeals Commission, the Constitutional Court noted that the applicant’s complaint had been lodged out of the statutory six months time-limit. However, referring to its constant case-law, it found that the applicant’s constitutional rights were not violated.

2. The second set of proceedings

On 11 February 1997 the applicant instituted proceedings against the Regional Insurance Board. He claimed that it had to pay ATS 18,327,701.01 as the fees for effected treatments provided for in the honorary agreement between the Association of Insurance Boards and the Tyrol Medical Association were too low and, therefore, his contract with the Regional Health Insurance Board was null and void.

On 11 August 1997 the applicant made a request for transfer of jurisdiction ( Devolutionsantrag ) as the Joint Arbitration Committee failed to decide within the statutory six months-period.

On 28 October 1997 the Regional Appeals Commission, after having held a hearing, dismissed the applicant’s claim.

On 15 December 1997 the applicant lodged a complaint with the Constitutional Court. He alleged that the contract between the Association of Insurance Boards and the Tyrol Medical Association on which his honoraria were based violated his constitutional right to non-discrimination. Further, he complained that the Regional Appeals Commission was no independent and impartial tribunal within the meaning of Article 6 of the Convention by virtue of its composition and submitted that the Association of Insurance Boards provided as assessors two deputy directors of the Tyrol Regional Health Insurance Board.

On 16 December 1999 the Constitutional Court dismissed the complaint. Referring to its constant case law, the Constitutional Court found that the Regional Appeals Commission in general may be considered as an independent and impartial tribunal because of the term of office of the members and because members were not bound by any instructions. Further it found that ....

“... It is true that the assessors of the Regional Appeals Commission are representatives of two conflicting spheres of interest. However, these members are not bound by instructions from the sending organisation ... and they are by no means spokespersons of these organisations. Their task is rather to bring their experience to bear in the proceedings. ... A violation of the required impartiality could, thus, ... be due to specific circumstances in the individual case resulting, for example from an official or organisational dependence of the appointed member of the Regional Appeals Commission. ...

Such official or organisational dependence does, however, in the Constiutional Court’s view, not arise from the mere fact that the parties of the general agreement provide the assessors of the Regional Appeals Commission. ... In view of the legally guaranteed freedom from instructions of the members of the Regional Appeals Commission, a constellation affecting the appearance of independence and impartiality could - also in the light of the case Hortolomei v. Austria (cited above) - only exist if the appointed assessors had been involved in the preparation of the general agreement or if there were other specific reasons raising legitimate doubts about their independence and impartiality in determining certain legal matters. ...”

It, thus, did not accept that the Regional Appeals Commission’s decision had violated the applicant’s constitutional rights and found no indication that the Regional Appeals Commission’s members in the present case were not impartial.

B. Relevant domestic law

1) General provisions

Pursuant to Sections 341 ff. of the Social Insurance Act ( Allgemeines Sozialversicherungsgesetz ) the Association of Insurance Boards ( Hauptverband der Sozialversicherungsträger) on behalf of the Regional Health Insurance Board ( Gebietskrankenkasse ) concludes with the respective Regional Medical Association a general agreement ( Gesamtvertrag ). The Regional Health Insurance Board concerned has to consent to the general agreement which is the basis of individual contracts ( Einzelvertrag ) between the respective Regional Health Insurance Board and medical practitioners. It regulates, inter alia , the remuneration for medical treatments effected by practitioners under contract.

2) The composition of the Regional Appeals Commission

a) Pursuant to the Social Insurance Act, in the version in force at the material time, provided as follows:

"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 ...

(2) The Joint Arbitration Committee shall consist of four members, two of whom shall be appointed by the Regional Medical Association and two by the Regional Insurance Board, which is 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 Minister of Justice. 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 Regional Medical Association and the Association of Insurance Boards each provide two assessors."

The non-judicial members of the Regional Appeals Commission are appointed for a renewable period of five years and not subject to the hierarchical authority of the bodies which sent them (Article 21 of the Federal Constitution). They may only be recalled, if they do not anymore fulfil the professional requirements to be appointed or if they violate or neglect their official duties. Moreover, they may be recalled upon request of the sending organisation for important personal reasons by the Federal Minister of Justice.

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.

b) On 1 September 2002 an amendment of the Social Insurance Act, modifying the manner of appointment of the assessors, entered into force. The amended version of Section 345, in so far as relevant, provides as follows:

“... The Federal Minister of Justice shall appoint t wo assessors upon proposal of the Austrian Medical Association respectively and two upon proposal of the Association of 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.”

COMPLAINT

The applicant’s remaining complaint under Article 6 of the Convention was that the Regional Appeals Commission could not be regarded as independent and impartial as he was challenging a contract concluded by the two bodies, namely the Association of Insurance Boards and the Tyrol Medical Association, which had sent the assessors. Referring to the case of Hortolomei v. Austria (no. 17291/90, Commission’s report of 16 April 1998, § 46, unreported) he argued that, considering the manner of appointment of the assessors and the fact that, in the second set of the proceedings, the Association of Insurance Boards provided as assessors two deputy directors of the Tyrol Regional Health Insurance Board, which was both party to the general agreement and to the individual contract, he could legitimately fear that the assessors had a common interest contrary to his own.

THE LAW

The applicant complained under Article 6 § 1 of the Convention that the Regional Appeals Commission which decided on his claim could not be considered as an independent and impartial tribunal. Article 6 § 1, so far as relevant, provides as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law.”

1. As regards the first set of the proceedings the Government submitted that the applicant has not exhausted domestic remedies, as required by Article 35 of the Convention as he had brought his allegations concerning the independent and impartial tribunal only after the statutory six weeks time-limit. They conceded that the Constitutional Court could deal with submissions made out of time but was not obliged to so.

The applicant replied that he had exhausted domestic remedies as the Constitutional Court also dealt in the first set of the proceedings with the complaint at issue.

As to the applicant’s failure to submit his complaint concerning the independent and impartial tribunal in due time , the Court reiterates that the purpose of the rule on exhaustion of domestic remedies is to enable the State to have the opportunity to redress the alleged damage by domestic means within the framework of its own legal system before proceedings are brought in an international court (see the above-mentioned Adkivar and Others judgment, p. 1210, § 65). Moreover, the rule of exhaustion must be applied with some degree of flexibility and without excessive formalism. In reviewing whether it has been observed, it is essential to have regard to the particular circumstances of each individual case ( ibid , p. 1211, § 69).

The Court reiterates that domestic remedies have not been exhausted when an appeal is not admitted because of a procedural mistake by the appellant. However, non-exhaustion of domestic remedies cannot be held against the applicant if, in spite of the latter’s failure to observe the forms prescribed by law, the competent authority has nevertheless examined the substance of the appeal ( Huber v. Switzerland, no. 12794/87, Commission decision of 9 July 1988, Decisions and Reports 57, p [PB2] . 251 (265); Voggenreiter v. Germany (dec.), no. 47169/99, 28 November 2002, unpublished).

It is true that, in the present case, the applicant did not file the complaint at issue in time. However, the Constitutional Court did not reject his complaint as being inadmissible for procedural reasons but, albeit only compendiously, dealt with its merits, giving him the clear reply that no violation of his constitutional rights could be made out.

In the light of the Constitutional Court’s decision, the Court finds no basis for rejecting the complaint relating to the first set of the proceedings for non-exhaustion.

It follows that the Government’s objection on non-exhaustion has to be rejected.

2. As to the merits, the Government contended that there was no indication of impartiality of the Regional Appeals Commission and relied in the first place on the Constitutional Court’s decision of 16 December 1999 (cited above).

The Government, further, pointed out that the present case was in compliance with the Court’s case law and referred to the case Siglfirdingur EHF v. Iceland ((dec.), no. 34142/96, 7 September 1999, unpublished) in which the Court had to decide whether Labour Courts under Icelandic law, sitting with assessors appointed by the Confederation of Icelandic Employers, by the Icelandic Federation of Labour and by the Minister of Trade qualified as independent and impartial tribunals pursuant to Article 6 § 1 of the Convention. The Government contended that the Regional Appeals Commission met the requirements set out in that decision and drew attention to the irremovability of the assessors from office.

Moreover, they stressed that no member of the Regional Appeals Commission was involved in the negotiation or conclusion of the contracts to be considered in the proceedings at issue. They concluded that these circumstances excluded a situation which led the Court to its finding in the case McGonnel v. United Kingdom (no. 28488/95, §§ 53-58, ECHR 2000-II). In this respect they pointed out that the Constitutional Court had quashed several decisions of the Regional Appeals Commission, if one of the assessors had been directly involved in the negotiations of the contracts to be examined in subsequent proceedings (e.g. VfSlg. 15981).

Finally, they submitted that the Social Insurance Act was amended in 2002 (see domestic law part) and that this amendment, following the recent administrative practice, brought clarification and ensured an ever greater distance between the members of the Regional Appeals Commission and the subject-matter to be determined.

The applicant replied that the Government disregarded the fact that, in the second set of the proceedings, two of the assessors of the Regional Appeals Commission had been deputy directors of the Tyrol Regional Health Insurance Board. He argued that he had claimed payment for honorary against the Tyrol Regional Health Insurance Board and that, therefore, as representatives of the defendant were assessors in the Regional Appeals Commission, this body did not have the required appearance of independence, or the required objective impartiality. Although he had relied on the same facts before the Constitutional Court, the latter found that the Regional Appeals Commission may be regarded as impartial tribunal.

Further he reiterated his argument that the Association of Insurance Boards and the Regional Medical Association were parties to the general agreement which was the basis for his individual contract with the Regional Health Insurance Board. These two bodies each provided two assessors for the Regional Appeals Commission which had to decide on the validity of the general agreement which was challenged by him. The applicant concluded that in these circumstances his fears as to a lack of independence and impartiality of the Regional Appeals Commission were justified.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Søren nielsen Christos Rozakis              Deputy Registrar President

[Note1] To be checked.

[PB2] 1 Add a second "p" if referring to more than one page. Numbers are to be indicated as follows: 1-2, 12-14, 115-16, 1122-24.