CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 juillet 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }    The European Commission of Human Rights sitting in private on 18 July 1986, the following members being present:                       MM. C.A. NØRGAARD, President                         J.A. FROWEIN                         F. ERMACORA                         G. TENEKIDES                         S. TRECHSEL                         B. KIERNAN                         A. WEITZEL                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         G. BATLINER                         H. VANDENBERGHE                    Sir   Basil HALL                      Mr.   H.C. KRÜGER, Secretary to the Commission   Having regard to Article 25 (art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;   Having regard to the application introduced on 31 January 1984 by B. against the Federal Republic of Germany and registered on 20 August 1984 under file No. 11097/84;   Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;   Having deliberated;   Decides as follows:   THE FACTS   The facts of the case, as they have been submitted by the applicant, may be summarised as follows:   The applicant is a German citizen born in 1902 and resident in Blankenrath.   He is a dentist by profession and practises as a panel doctor.   Before the Commission he is represented by Mr. M. Wenger, a lawyer practising in Frankfurt.   On 23 February 1980, the Review Board (Prüfungsausschuss) of the Koblenz/Trier Panel Dentists' Association (Kassenzahnärztliche Vereinigung) ordered that the applicant's fees for the years 1977 and 1978, as far as they concerned the treatment of insured persons, should be curtailed by an amount of 24,871.32 DM to 135% of the average of fees in the Koblenz/Trier district.   The Panel Dentists' Association is a body instituted under the German Insurance Act (Reichsversicherungsordnung) and settles, inter alia, the panel dentists' accounts with the health insurances.   The Review Board proceeded from the facts that the applicant's fees exceeded the said average by more than 80% and that this had not been sufficiently explained by him.   The board concluded that the applicant's methods of treatment were uneconomical.   On the applicant's administrative appeal (Widerspruch) the Appeal Board (Beschwerdeausschuss) of the Koblenz/Trier Panel Dentists' Association on 22 October 1980 partly quashed the decision of 23 February 1980.   The Appeal Board found in particular that the applicant could charge fees exceeding the average of fees in his area by 50% in view of the special situation of his practice.   It therefore reduced the fees only by 12,781.04 DM.   The applicant's subsequent complaint (Klage) was dismissed by the Social Court (Sozialgericht) of Mainz on 1 April 1981.   Against this judgment the applicant lodged an appeal (Berufung) with the Social Court of Appeal (Landessozialgericht) of Rhineland-Palatinate. In an order (Verfügung) the judge rapporteur expressed doubts as to the lawfulness of the Board's decisions in view of their unclear reasoning.   On 11 November 1982, the Appeal Board, therefore, quashed its previous decision and, without hearing the applicant, issued a new decision, which was identical in substance, but reasoned in detail.   On 28 January 1982, the applicant complained about this revised decision to the Mainz Social Court.   On 12 May 1982, the Appeal Board upon a further instruction from the Social Court of Appeal as to the omitted hearing quashed its decision a second time.   The Board heard the applicant and took a third decision which was again identical in substance to its two previous decisions.   On 7 July 1982, the applicant also complained about the last mentioned decision to the Mainz Social Court.   In two separate decisions on 6 October 1982, the Mainz Social Court dismissed both complaints dated 28 January and 7 July 1982 as being inadmissible.   The court held that the respective revised decisions of the Appeal Board were issues of the appeal proceedings before the Social Court of Appeal according to S. 96 of the Social Courts' Act (Sozialgerichtsgesetz) and could not therefore be separately complained of.   S. 96 provides for a substitution of administrative acts at issue in social court proceedings, if they are subsequently changed or substituted by the administrative authority.   On 4 November 1982, the applicant appealed against these decisions of 6 October 1982 to the Social Court of Appeal.   On 19 November 1982, the Social Court of Appeal ruled upon the applicant's appeal against the Mainz Social Court's judgment of 1 April 1981, which concerned the first Appeal Board's decision of 22 October 1980, upon his complaint about the Appeal Board's second decision of 11 November 1981 and upon his further complaint of the Appeal Board's third decision of 12 May 1982.   The court was composed of a presiding judge, two professional and two honorary judges, the latter having been appointed on the recommendation of the Panel Dentists' Association.   The Court declared the first two issues to be settled and observed that S. 96 of the Social Courts' Act applied to substitutions of administrative acts for reasons of substantial changes as well as for reasons of procedure without substantial changes.   Insofar as the applicant had complained about the Appeal Board's third decision of 12 May 1982, the Court partly quashed this decision to the extent that it curtailed the applicant's fees of 1977 and dismissed the remainder of the complaint.   The Court held that the applicant's fees of 1978 were properly curtailed on the basis of a general comparison with the average of fees charged by other dentists in the Koblenz/Trier district.   Moreover, the Court referred to the lower averages of the applicant's subsequent accounts.   After consideration of all his objections the Court concluded that the applicant who was represented by a lawyer failed to disprove the assumption of uneconomical treatment.   He did not substantiate special features of his practice justifying the additional expenditures.   The Court refused leave to appeal to the Federal Social Court (Bundessozialgericht).   On 3 March 1983, the Social Court of Appeal dismissed the applicant's appeals against the two separate decisions of the Mainz Social Court dated 6 October 1982.   The Appeal Court found both appeals inadmissible on the ground that the administrative acts at issue, i.e. the Appeal Board's second decision of 11 November 1981 and its third decision of 12 June 1982, had already been adjudged by the Appeal Court's preceding decision of 19 November 1982.   The Court did not grant leave to appeal to the Federal Social Court.   In two separate decisions on 22 June 1983, the Federal Social Court dismissed the applicant's two requests for leave to appeal (Nichtzulassungsbeschwerde).   The Federal Court held that the applicant had not met the requirements of S. 160 para. 2 of the Social Courts' Act according to which he had to show a fundamental importance of the case, a deviation from the Federal Court's previous case law or a violation of procedural law, respectively.   The Federal Court observed in particular that the Appeal Court had not violated the applicant's right to a fair hearing.   The taking of evidence had been complete inasmuch as the previous instance had assumed that in any event the further submissions did not substantiate the applicant's claim to the full amount of his fees.   Moreover, the Appeal Court's comparison of the applicant's own accounts with each other had not violated his right to a hearing, as it had been announced in advance. In this respect the court stated that the previous instance had indicated such a comparison in advance.   The applicant filed constitutional complaints against these two decisions of 22 June 1983.   He alleged in particular unfair and improperly conducted proceedings in view of the fact that the Appeal Board had been able to substitute its decisions twice prior to the Regional Social Court's decision of 19 November 1982.   He furthermore complained of the global assessment of the curtailment.   In two separate decisions on 21 and 22 November 1983, the Federal Constitutional Court (Bundesverfassungsgericht) rejected the applicant's constitutional complaints as offering no prospect of success.   The Court found no appearance of a violation of basic rights of the applicant.   The right to a fair hearing did not regulate details of the assessment of evidence.   The applicant had not met the requirement to show that he fulfilled a condition for leave to appeal to the Federal Social Court and this requirement did not as such infringe the constitutional right to a fair hearing.   COMPLAINTS   1.       The applicant complains under Article 6 para. 1 (art. 6-1) of the Convention that in the respective proceedings the German social courts could not be considered as being impartial inasmuch as the honorary judges were appointed on the recommendation of the Panel Dentists' Association.   2.       The applicant also complains under Article 6 para. 1 (art. 6-1) that the Social Court of Appeal instructed the Appeal Board twice to revise its decisions.   He alleges that this was not provided for by the Social Courts' Act and infringed his right to a fair hearing.   Moreover, he was ordered by the Court to pay the costs of the proceedings.   3.       The applicant furthermore complains of the Appeal Court's refusal to hear evidence on the question whether or not his methods of treatment were uneconomical.   He had moreover not been able to offer evidence in respect of the fact that he had been ill for a time in 1978/1979, the Court having failed to indicate in advance that it envisaged to compare the applicant's own accounts with each other.   In this respect the applicant also relies on Article 6 para. 1 (art. 6-1) of the Convention.   THE LAW   1.       The applicant complains under Article 6 para. 1 (art. 6-1) of the Convention of the proceedings before the German social courts.   The Commission observes that these proceedings concerned the curtailment of the applicant's fees as a panel doctor which were to be paid by the local general health insurances.   The first issue to be decided is, therefore, whether or not these proceedings involved a determination of the applicant's civil rights and obligations within the meaning of Article 6 para. 1 (art. 6-1) of the Convention.   The Commission recalls the Convention organs' case law according to which it is by means of private relationships with patients that medical practitioners in private practice avail themselves of the right to continue to practise.   It follows that the right to continue to exercise the medical profession in general is of a civil nature within the meaning of Article 6 para. 1 (art. 6-1) of the Convention (see Eur. Court H.R., Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43 para. 48 and König judgment of 23 April 1977, Series A no. 27 para. 93).   It is true that in the present case the curtailment of the applicant's fees to be paid under the health insurance scheme did not infringe his right to practise as a dentist.   However, the Commission notes that the special feature of settling the medical practitioners' fees under the German health insurance scheme falls to be considered in the light of the basically private character of the contractual relationship between medical practitioner and patient.   In these circumstances the Commission concludes that the proceedings at issue concerned the determination of the applicant's civil rights and obligations within the meaning of Article 6 para. 1 (art. 6-1).   2.       The applicant complains under Article 6 para. 1 (art. 6-1) that the German social courts are in all instances composed of professional and honorary judges.   He alleges that the honorary judges were not impartial since they were appointed on the recommendation of the Panel Dentists' Association.   However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of this provision as, under Article 26 (art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.   In the present case the applicant has not shown that he raised this complaint in his constitutional complaints before the Federal Constitutional Court and he has, therefore, not exhausted the remedies available to him under German law.   Moreover, an examination of the case does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from exhausting the domestic remedies at his disposal.   It follows that, in respect of his above complaint of partiality, the applicant has not complied with the condition as to the exhaustion of domestic remedies and that this complaint must therefore be rejected under Article 27 para. 3 (art. 27-3) of the Convention.   3.       The applicant also complains under Article 6 para. 1 (art. 6-1) of the Convention that the Social Courts' proceedings prior to the decision of 19 November 1982 were unfair and improperly conducted.   The proceedings violated the Social Courts' Act and led to incorrect and unjustified results.   The Commission recalls at the outset that, in accordance with Article 19 (art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).   It is true that in the instant case the applicant complains under Article 6 para. 1 (art. 6-1) of the Convention that the Social Court of Appeal twice instructed the Appeal Board to revise its decisions in view of procedural faults.   He furthermore alleges that the Court did not properly assess his fees, in that its conclusion of inefficiency of treatment was based on a general comparison of his fees with the average of fees and on a comparison of his accounts with each other. He complains in particular that the Court did not hear the evidence suggested.   However, the Commission finds no indication that the applicant could not present his case properly or that his case was improperly conducted by the respective courts.   The Commission notes in particular that the Appeal Court gave the instructions to the Appeal Board at an early stage of the Appeal Court proceedings.   Moreover, the subsequent substitution of administrative acts which are at issue in social courts' proceedings is provided for by S. 96 of the German Social Courts' Act.   The Commission observes that after the respective substitutions the applicant had full opportunity to comment upon the new aspects of his case as well as to disprove the assumption of uneconomical treatment.   Moreover, it appears from the decision of the Federal Social Court that the comparison of the applicant's own assessments, of which he complains, had been announced in advance, so that he was able to make relevant submissions in time.   It follows that the applicant's above allegations do not disclose any appearance of a violation of the rights set out in Article 6 para. 1 (art. 6-1) of the Convention.   The remainder of the application is therefore also manifestly ill-founded within the meaning of Article 27 para. 2 (art. 27-2) of the Convention.   For these reasons, the Commission   DECLARES THE APPLICATION INADMISSIBLE   Secretary to the Commission                  President of the Commission         (H.C. KRÜGER)                                  (C.A. NØRGAARD)