BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF FRAGNER v. AUSTRIA
(Application
no. 18283/06)
JUDGMENT
STRASBOURG
23
September 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 Fragner v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 2 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18283/06) 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 Arnold Fragner (“the
applicant”), on 4 May 2006.
- The
applicant was represented by Mr M. Lechner, a lawyer practising in
Lochau. The Austrian Government (“the Government”) were
represented by their Agent, Ambassador H. Tichy, Head of the
International Law Department at the Federal Ministry for European and
International Affairs.
- 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.
- On
19 June 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 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant lives in Engelhartstetten.
- The
applicant is a practitioner of general medicine. He has an individual
contract with the Lower Austrian Health Insurance Board
(Niederösterreichische Gebietskrankenkasse).
- One
part of the 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.
- In
1995 the applicant treated two patients carrying out minor
chirurgical interventions. He claimed payment for these treatments
from the Lower Austrian Health Insurance Board, submitting that the
chirurgical interventions had been so urgent that he could not obtain
the necessary visa from a chief physician (Chefarztgenehmigung).
Moreover, the restriction excluding general practitioners from
administering certain types of therapy (Fachgruppenbeschränkung)
was arbitrary and against honest practices (gute Sitten).
- The
Lower Austrian Health Insurance Board refused to pay the fees claimed
as the applicant is not a specialist doctor but a general
practitioner.
- Thereupon,
on 2 May 1996, the applicant claimed fees in the amount of 1,770
Austrian Schillings (ATS), approximately 128.63 euros (EUR), before
the Joint Arbitration Committee (Paritätische
Schiedskommission).
- On
4 September 1996 the Joint Arbitration Committee held a hearing but,
because of a tie vote, it could not take a binding decision.
- Therefore
the applicant filed an application for the transfer of jurisdiction
(Devolutionsantrag) to the Regional Appeals Commission
(Landesberufungskommission) on 23 September 1996.
- On
11 December 1996 the Regional Appeals Commission dismissed the
applicant’s claim as it found that the applicant had failed to
obtain the necessary visa from a chief physician.
- On
9 May 1997 the applicant filed a complaint with Constitutional Court
(Verfassungsgerichtshof) and on 13 October 1999 that court
quashed the Regional Appeals Commission’s decision. The
Constitutional Court found that the alleged unlawfulness of the
restriction excluding general practitioners from administering
certain types of therapy was a preliminary question which the Appeals
Commission had failed to address.
- On
3 May 2000 the applicant filed a request for proceedings to be
resumed and, on 8 November 2000, the Appeals Commission held an oral
hearing in which it decided to appoint an expert for examining the
question of urgency of the chirurgical interventions forming the
basis of the dispute.
- Since
the expert did not deliver the report, the applicant, on 15 January
2001, urged the Appeals Commission to continue its examination.
- After
the expert finally delivered the report a further hearing in camera
was scheduled for 15 May 2002.
- At
the hearing the applicant’s lawyer argued that the applicant
was professionally competent to do the interventions at issue and
that to give such treatment was his basic contractual obligation. Any
conflicting restriction was therefore unlawful.
- Subsequently
the Appeals Commission scheduled a further hearing, this time in
public, for 26 November 2003 as in the meantime the Constitutional
Court, on 25 November 2002, had found that Article 6 of the
Convention required the Appeals Commissions to hold their hearing in
public.
- Thus,
on 26 November 2003 a public hearing before the Appeals Commission
took place in which the taking of evidence was repeated and the
applicant’s lawyer argued as in the previous hearing.
- On
10 December 2004 the Appeals Commission dismissed the applicant’s
claim. It was not persuaded that there had actually been a situation
of emergency allowing the applicant not to obtain the necessary visa
from a chief physician beforehand. It also held that the restriction
excluding general practitioners from administering certain types of
therapy was lawful. This decision was served on the applicant’s
lawyer on 3 June 2005.
- On
3 June 2005 the applicant complained to the Constitutional Court,
alleging a breach of the principle of equal treatment, and partiality
and lack of independence of the Regional Appeals Commission.
- On 27
September 2005 the Constitutional Court found no violation of the
right to a fair trial and upheld the contested decision. It held that
the assessors of the Regional Appeals Commission were independent in
exercising their function and no circumstances giving rise to doubts
about their impartiality and independence had arisen in the present
case. This decision was served on counsel on 29 November 2005.
II. RELEVANT DOMESTIC LAW
- For
a detailed description of the legal situation in Austria in this
field see Stechauner v. Austria, no. 20087/06, §§
21-26, 28 January 2010.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AS
REGARDS THE LENGTH OF THE PROCEEDINGS
- 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 ...”
- The
Government contested that argument.
A. Admissibility
- 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.
- However,
the Court reiterates that in the cases of Stechauner v. Austria
and Puchstein v. Austria
it has found that a complaint to the Constitutional Court in order to
obtain a 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 could not be considered
effective in the light of the principles developed by the Court and
therefore an applicant was not bound to make use of that remedy (see
Stechauner v. Austria,
no. 20087/06, § 34, 28 January 2010 and Puchstein v.
Austria, no. 20089/06, § 31, 28
January 2010).
- The
Court therefore concludes that the applicant complied with his
obligation to exhaust domestic remedies. Thus, the Government’s
objection on non-exhaustion has to be dismissed.
- 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
- The
applicant argued that the overall duration of the proceedings, which
had lasted more than nine years, was not in line with the requirement
that proceedings be concluded within a reasonable time.
- 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.
- 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).
- The
Court observes that the relevant time started on 2 May 1996, when the
applicant filed a request for remuneration of services with the Joint
Arbitration Committee and ended on 29 November 2005, when the
Constitutional Court’s decision was served on the applicant’s
lawyer. Thus, they lasted for approximately 9 years and 7 months.
- 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.
- The
applicant’s conduct did not contribute to the length of the
proceedings.
- 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 two years and five
months until the Constitutional Court took its decision. Furthermore
there was a delay of approximately five years and two months between
the Constitutional Court’s decision on 13 October 1999 and
the next decision issued by the Regional Appeals Commission on 10
December 2004.
- 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.
- 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
Admissibility
- The
applicant complained that the Regional Appeals Commission was not
independent and impartial as provided in Article 6 of the Convention,
which reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
- The
Government argued that none of the assessors were 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 assessors, who represented 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.
- The applicant contested that argument. Even though
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. Secondly, 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.
- 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, inter alia, 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 Morris v. the United Kingdom, no. 38784/97, §
58, ECHR 2002-I).
- The
Court observes that in the cases of Stechauner
v. Austria and Puchstein v.
Austria, which also concerned the
alleged lack of impartiality and independence of the Lower Austria
Regional Appeals Commission, it has found that that body qualified as
an imparital and independent tribunal within the meaning of Article 6
§ 1 of the Convention. In this respect the Court noted 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. As regards the requirements of
independence and objective impartiality of assessors sitting on the
Regional Appeals Commission, the Court observed
that the assessors were appointed by the Federal Minister of
Justice and 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, could
not be assessors in the respective Regional Appeals Commissions. The
mere fact that other Regional Health Insurance Boards had provisions
in their general agreements which were similar or identical to the
provisions of the Remuneration Regulation in dispute did not suffice
to cast doubt on the independence and impartiality of the assessors
(see Stechauner, cited above, §§ 55, 58, 59;
Puchstein, cited above, §§ 51, 54, 55).
- The
Court sees no reason to depart from this reasoning, all the more
since the specific authority which independence and impartiality was
the subject of the Court’s examination in the above quoted
cases is the same which decided in the present case and the applicant
did not raise any additional arguments which might put these findings
into question. This being so the Court cannot find that in the
present case the Regional Appeals Commission lacked independence and
impartiality as required by Article 6 § 1 of the Convention.
Accordingly, there is no appearance of a violation of this provision.
- It
follows that this complaint must be rejected as being manifestly
ill-founded, pursuant to Article 35 §§ 3 and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 128.63 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.
- 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.
- 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
- 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. Both amounts include Turnover Tax.
- The
Government found the claim excessive.
- 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.
- 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, plus any tax that may be chargeable to the applicant
on that amount.
C. Default interest
- 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
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 23 September 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
