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.

1987-1988 2 instances: Health Insurance Board

Federal Joint Arbitration Committee

1988-1990 3 judicial instances: Regional Court

Court of Appeal

Supreme Court

1990-1992 2 arbitration instances: Joint Arbitration Committee (as                                                                               newly established)

Regional Appeals Commission (as                                                                                            newly established)             

1992-1993 1 instance: Constitutional Court (first proceedings,resulting in the decision of the Regional Appeals Commission being quashed)

1994 1 instance: Regional Appeals Commission

1994-1995 1 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.