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 ,
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 WampachDeputy Section Registrar,
Having deliberated in private on 7 January 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  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.
2.  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.
3.  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.
4.  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
5.  The applicant lives in Großau.
6.  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.
7.  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.
8.  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.
9.  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.
10.  The Joint Arbitration Committee held hearings on 1 April 1998 and 16 September 1998.
11.  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.
12.  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.
13.  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.
14.  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.
15.  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.
16.  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.
17.  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.
18.  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.
19.  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.
20.  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
21.  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. ...”
22.  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.”
23.  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.
24.  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.
25.  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).
26.  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
27.  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.”
28.  The Government contested that argument.
A.  Admissibility
29.  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.
30.  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.
31.  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.
32.  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.
33.  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.
34.  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.
35.  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.
36.  In conclusion, the Court dismisses the Government’s objection of non-exhaustion.
37.  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
38.  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.
39.  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.
40.  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).
41.  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.
42.  The applicant’s conduct did not contribute to the length of the proceedings.
43.  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.
44.  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.
45.  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
46.  The applicant complained that the Regional Appeals Commission was not independent and impartial as provided in Article 6 of the Convention.
47.  The Government contested that argument.
A.  Admissibility
48.  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
49.  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.
50.  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.
51.  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.
52.  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.
53.  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, , 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 , no. 38784/97, § 58, ECHR 2002-I).
54.  The Court will consider the issue of independence and objective impartiality together as they are concepts that are closely linked (see , 25 February 1997, § 73,  1997-I).
55.  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).
56.  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).
57.  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.
58.  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, 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.
59.  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.
60.  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
61.  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
62.  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.
63.  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.
64.  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
65.  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.
66.  The Government found the claim excessive.
67.  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.
68.  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
69.  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
1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention as regards the length of the proceedings;

3.  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;

4.  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;

5.  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