CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 mai 1997

.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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 17291/90                       by Rom HORTOLOMEI                       against Austria        The European Commission of Human Rights (Second Chamber) sitting in private on 21 May 1997, the following members being present:              Mrs.   G.H. THUNE, President            MM.    J.-C. GEUS                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms.    M.-T. SCHOEPFER, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 24 September 1990 by Rom HORTOLOMEI against Austria and registered on 15 October 1990 under file No. 17291/90;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      16 October 1992 and the observations in reply submitted by the      applicant on 16 December 1992;   -     the Commission's decision of 1 September 1993 to adjourn the      case;   -     the Commission's decision of 16 April 1996 to communicate further      questions to the parties;   -     the observations submitted by the respondent Government on      14 August 1996 and the observations in reply submitted by the      applicant on 18 October 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Austrian citizen born in 1950.   He is a dentist and is represented before the Commission by Mr. W. Leitner, lawyer, of Vienna.   The facts as submitted by the parties may be summarised as follows.   The particular circumstances of the case        The applicant entered into a contract with the Lower Austrian Regional Health Insurance Board (Niederösterreichische Gebietskrankenkasse).   The contract was expressed to be for a fixed period, namely from 1 April 1986 to 31 March 1987.   On 19 February 1987 the Health Insurance Board wrote to the applicant that his contract would expire on 31 March 1987, justifying the expiration by reference to various allegations of unprofessional behaviour.   The applicant states that these allegations were subsequently shown to be without foundation in disciplinary proceedings against him.        On 3 March 1987, the applicant asked the Health Insurance Board for a decision on whether it was in fact possible to enter into a fixed term contract with a Health Insurance Board (rather than an indefinite contract).   That request was rejected on 16 July 1987 by the Regional Joint Arbitration Committee (paritätische Schiedskommission) on the ground that the letter of 19 February 1987 was not a termination of a contract but a mere statement that the fixed term contract was to expire on a certain date.   The applicant's appeal to the Federal Joint Arbitration Committee was dismissed on 18 January 1988.        On 27 May 1987 the applicant introduced a civil action with the Vienna Regional Court (Landesgericht) for a declaration that he was still under contract with the Regional Health Insurance Board.   The action was transferred to the St. Pölten Regional Court, as the competent court, on 24 June 1987.        On 27 January 1989 the St Pölten Regional Court found in the applicant's favour on the ground that it was not possible under Austrian law for Regional Health Insurance Boards to enter into fixed- term contracts with dentists, save in certain special cases which did not apply.   The Vienna Court of Appeal (Oberlandesgericht) on 9 June 1989 agreed with the St Pölten Regional Court.        The Regional Health Insurance Board appealed to the Supreme Court (Oberster Gerichtshof) which, on 31 January 1990, found, inter alia, that with the entry into force of the 48th amendment to the Social Insurance Law (Allgemeines Sozialversicherungsgesetz, BGBl. 1989/642) the civil courts were no longer competent to deal with disputes on validity of contracts between doctors and the Health Insurance Boards. The amendment contained no transitional provisions, and in the absence of any provision permitting transfer of the case to a Joint Arbitration Committee under the new law, the Supreme Court could only quash the entire proceedings to that date.        The applicant had to bear the costs of the proceedings, amounting to AS 154,421.40.        The newly constituted Joint Arbitration Committee failed to take a decision in the further proceedings brought by the applicant within the six months provided for by law, and the case was remitted to the Regional Appeals Commission (Landesberufungskommission).   The Regional Appeals Commission rejected the applicant's complaint on 12 May 1992.      In September 1992, the applicant became aware of Guidelines agreed in 1985 between the Regional Health Insurance Board and the Lower Austrian Medical Association (Ärztekammer).   The Guidelines provide, inter alia, that new Health Insurance Board doctors should be given an initial fixed-term contract of one year.        On 30 September 1993 the Constitutional Court (Verfassungsgerichtshof) quashed the decision of the Regional Appeals Commission on the ground that it infringed the applicant's constitutional right to have his case dealt with by an independent and impartial tribunal within the meaning of Article 6 of the Convention because one member of the Commission had been involved in the "termination" of the applicant's contract in 1986.   The Constitutional Court did not accept the applicant's claim that the Regional Appeals Commission was not independent and impartial by virtue of its composition: it referred to previous case-law (VfSlg 9878/1983 and 12470/1990) which had considered that the Regional Appeals Commissions were independent and impartial because of the term of office of the members and because members were not bound to accept instructions from the executive.        On 6 April 1994 the Lower Austrian Regional Appeals Commission confirmed its decision rejecting the request for a declaration that the applicant's contract was indefinite.   The decision states that an oral hearing was held.        On 21 July 1994 the applicant filed an appeal with the Constitutional Court. In addition to the complaints concerning the composition of the Regional Appeals Commission, the applicant also alleged arbitrariness on the part of the Regional Appeals Commission as its decision was tainted by the presence of four (out of five) members who represented the opposite party, and because the ordinary courts had agreed, with a simple and coherent reasoning, with the applicant.        The Constitutional Court dismissed the appeal on 25 September 1995, received by the applicant's representative on 10 October 1995. The Constitutional Court did not accept that the Regional Appeals Commission had decided arbitrarily: the mere fact that the Commission came to a different conclusion from the ordinary courts was not conclusive, and the Regional Appeals Commission's decision was detailed.   As regards the composition of the Regional Appeals Commission, the Constitutional Court referred to its decision of 30 September 1993.   It added that it was not required to determine whether the law had been properly applied.   As to the question of publicity, the Constitutional Court referred to its own case-law that the Austrian reservation to Article 6 of the Convention also applies to the present type of proceedings.   Relevant Domestic Law        The new version of the Social Insurance Law (Allgemeines Sozialversicherungsgesetz), which entered into force on 1 January 1990, provides as follows:   (Translation)        "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, of whom two 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.        345.   (1) For each Land, a permanent Regional Appeals      Commission shall be established.   This 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 local Medical      Association and the Association of Insurance Boards each      provide two assessors."        The non-judicial members of the Regional Appeals Commissions are not subject to the hierarchical authority of the bodies which sent them (Article 21 of the Federal Constitutional Law).   Decisions of the Regional Appeals Commissions are excluded from the competence of the Administrative Court (Verwaltungsgerichtshof) by Article 133 para. 4 of the Federal Constitutional Law.   COMPLAINTS        The applicant originally complained that the decision of the Supreme Court of 31 January 1990 deprived him of a decision in the case and left him having to bear the costs, in violation of Article 6 para. 1 of the Convention.        In correspondence of December 1995 to February 1996, the applicant complained of the alleged lack of independence and impartiality of the Regional Appeals Commission, of the absence of a public hearing before either the Regional Appeals Commission or the Constitutional Court, and of the length of the proceedings, all in violation of Article 6 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 24 September 1990 and registered on 15 October 1990.        On 13 May 1992 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 16 October 1992, after an extension of the time-limit fixed for that purpose.   The applicant replied on 16 December 1992.        On 1 September 1993 the Commission adjourned its consideration of the case pending the outcome of the proceedings before the Constitutional Court.   The Commission resumed its consideration of the case on 16 April 1996, when it decided to put further questions to the parties on the admissibility and merits of the case.        The Government submitted their second set of observations on 14 August 1996, after an extension of the time-limit fixed for that purpose, and the applicant replied on 16 October 1996.   THE LAW        The applicant alleges violation of Article 6 (Art. 6) of the Convention in several respects.   He originally complained that he had been deprived of a decision of the domestic courts on the merits of his case by the Supreme Court's judgment of 31 January 1990, and subsequently added complaints about the proceedings before the Regional Appeals Commission and the Constitutional Court.        Article 6 para. 1 (Art. 6-1) of the Convention provides, so far as relevant, as follows.        "1.    In the determination of his civil rights and obligations      ..., everyone is entitled to a fair and public hearing within a      reasonable time by an independent and impartial tribunal      established by law. ..."        In connection with the complaints as originally made, the Government accepted that Article 6 (Art. 6) applied to the proceedings, but contended that the applicant had not exhausted domestic remedies as he had not put his complaints to the new complaints procedure, and ultimately to the Constitutional Court.   They considered that, in any event, the new structures complied with the requirements of Article 6 (Art. 6) of the Convention as the assessor members of the Regional Appeals Commission were irremovable from office for the period of five years, and were not bound by instructions from the organ which sent them.        In connection with the complaints as made after the Constitutional Court proceedings had ended, the Government re-iterate their view that the proceedings before the Regional Appeals Commission complied with the requirements of Article 6 (Art. 6) of the Convention as to independence and impartiality, noting that the Constitutional Court quashed the Appeals Commission's decision of 12 May 1992 on the ground that one participant should not have been involved in the decision.   They underline that the Convention does not preclude the participation of expert members on specialised bodies, and draw attention to the irremovability from office and the independence from instructions from the executive.   They add that in any event, the Constitutional Court -which is fully independent and impartial - thereafter dealt with the applicant's constitutional complaints in great detail, and gave reasons for its reason by referring to previous case-law.        As to the absence of an oral hearing, the Government consider, as did the Constitutional Court, that the Austrian reservation to Article 6 (Art. 6) of the Convention prevents the Commission from considering the question.   They consider that in any event, if the applicant had felt a hearing before the Constitutional Court was necessary, he could, and should, have asked for one.        The Government do not accept that the proceedings lasted unreasonably long.   They point to the considerable degree of complexity in legal terms, in which the courts and the arbitration boards came to different conclusions, and to the change in the legal situation brought about by the 48th amendment to the Social Insurance Act.   They also note that the applicant initially submitted his claim to the wrong civil court, and that the civil proceedings were speedily dealt with by the courts: three instances dealt with the case to 31 January 1990, when the Supreme Court quashed the proceedings.   The Government accept that the proceedings before the various commissions then lasted until 25 September 1995, but consider that overall, the length was not excessive.        The applicant maintains his complaints concerning the "removal" of the successful outcome he was about to achieve in the civil proceedings.   He also maintains his claims that the Regional Appeals Commission cannot be independent and impartial as - notwithstanding the period of office and the lack of direct instructions to the members - he was nevertheless challenging Guidelines which had been entered into by the two bodies which had sent the assessors.   He considers that even if in general the requirements of Article 6 (Art. 6) are met by having representatives of Health Insurance Boards and Medical Associations on the Regional Appeals Commissions, in the present case, the presence of those members gave rise to the violation.        As to the length of the proceedings, the applicant points out that the dispute was not complicated, and that the ordinary courts took two years and one month to deal with the case at first instance and on appeal, including jurisdictional questions.   He ascribes the subsequent length of the proceedings to the administrative organs' inability to reach sound legal decisions.   The applicant accepts that he initially applied for the civil proceedings to be brought in Vienna, and that he subsequently had them transferred to St. Pölten.   He does not accept that the initial forum was wrong - the Lower Austrian Health Insurance Board has an office in Vienna - but underlines that in any event no more than one month was lost.        The Commission notes that the Government's original contention that the application was inadmissible for non-exhaustion of domestic remedies because the applicant had not put his complaints to the Constitutional Court is no longer applicable, as the proceedings before the arbitration organs and the Constitutional Court have ended.        The Commission considers, in the light of the parties' submissions, that the case raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application.   The Commission concludes, therefore, that the application is not manifestly ill- founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for declaring it inadmissible have been established.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits.      M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber