Final Resolution ResDH(2004)73

Human Rights Application No. 1 729 1 /90 Hortolomei against Austria

(Adopted by the Committee of Ministers on 22 December 2004 at the 906th meeting of the Ministers ' Deputies)

The Committee of Ministers, under the terms of former Article 32 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to Interim Resolution DH(99)28, adopted on 1 8 January 1 999 in the case of Hortolomei against Austria , in which the Committee of Ministers decided that there had been violations of Article 6, paragraph 1 , of the Convention on account of excessive length of the proceedings by which the applicant contested the expiry of his fixed-term contract and the lack of independence and impartiality of the Regional Appeals Commission, four of its members having been nominated by the specialised bodies which had adopted the guidelines concerning inter alia fixed-term contracts; and also decided to make public the report of the European Commission of Human Rights;

Whereas the Committee of Ministers examined the proposals made by the Commission when transmitting its report as regards just satisfaction to be awarded to the applicant, proposals supplemented by a letter of the President of the Commission dated 1 7 June 1 999;

Whereas at the 680th meeting of the Ministers ' Deputies, the Committee of Ministers, agreeing with the Commission ' s proposals, held by a decision adopted on 8 October 1 999, in accordance with former Article 32, paragraph 2, of the Convention, that the government of the respondent state was to pay the applicant as just satisfaction, within three months, a global sum of 540 000 Austria n schillings, and that interest should be payable on any unpaid sum, calculated on the basis of each full elapsed month of delay at the statutory rate applicable on the date of this decision, it being understood that the interest would accrue from the expiry of the time-limit until full payment was plac ed at the disposal of the applicant;

Whereas the Committee of Ministers invited the government of the respondent state to inform it of the measures taken following the decisions of 1 8 January 1 999 and 8 October 1 999, having regard to Austria ' s obligation under former Article 32, paragraph 4, of the Convention to abide by them;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state accordingly gave the Committee information about the measures taken in consequence of the Committee ' s decisions taken to avoid new violations of the same kind as that found in this case (this information appears in the appendix to this resolution);

Whereas the Committee of Ministers satisfied itself that on 1 5 December 1 999, within the time-limit set, the government of the respondent state had paid the applicant the total sum of 540 000 Austria n schillings as just satisfaction,

Declares, after having taken note of the measures taken by the Government of Austria , that it has exercised its fun c tions under former Article 32 of the Convention in this case.

Appendix to final Resolution ResDH(2004)73

Information provided by the Government of Austria during the examination of the Hortolomei case by the Committee of Ministers

Due to the particular circumstances of the case, the Austria n Government considers that only the second violation, i.e. that of Article 6, paragraph 1 , of the Convention in respect of the lack of independence and impartiality of the Regional Appeals Commission required general measures.

The Government recalls that this violation was due to the fact that the four assessors sitting in the Regional Appeals Commission had been nominated by - and had close links with - the specialised bodies (i.e. the local Medical Association and the Association of Insurance Boards) which had adopted the Guidelines in 1 985, providing for fixed-term contracts.

In order to avoid new similar violations, Austria has amended Article 345, paragraph 1 , of the General Law of Social Insurance, which governs the composition of the Regional Appeals Commissions. The new article provides as follows:

The Chairman of the Commission shall henceforth be a judge to be appointed by the Federal Minister of Justice and, at the time of his nomination, be a member of a court in charge of matters of labour and social affairs. The Commission shall be composed of a Chairman (judge) and four members. The Federal Minister of Justice shall appoint its four members of which two are proposed by the Austria n Chamber of Physicians and two by the General Association of Social Insurance. Representatives and employees of the insurance company as well as the members and employees of the Chamber of Physicians who are parties to the contract challenged by the individual, may not sit as Commission members in the relevant proceedings. This provision aims at guaranteeing the full independence and impartiality of the Regional Appeals Commissions in every single case.

The Government of Austria therefore considers that there is no longer any risk of new violation similar to that found by the Court in this case and that Austria has thus fulfilled its obligations under former Article 32, paragraph 4, of the Convention.