PROCEDURE

The case originated in an application (no. 58141/00) 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 Thaler (“the applicant”), on 14 April 2000.

The applicant was represented by Mr B. Oberhofer, a lawyer practising in Innsbruck. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry for Foreign Affairs.

The applicant alleged that the Regional Appeals Commission which decided on his claims for doctor’s fees lacked independence and impartiality.

The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

By a decision of 15 September 2003 the Court declared the application admissible.

On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section (Rule 52 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1944 and lives in Innsbruck.

The applicant is a medical practitioner whose contract with the Tyrol Regional Health Insurance Board (Gebietskrankenkasse) was terminated by the latter on 31 December 1996. Subsequently the applicant was practising without a contract with the Health Insurance Board and is meanwhile retired. He complains about two sets of proceedings.

A. The first set of proceedings

On 29 October 1996 the applicant instituted proceedings against the Tyrol Regional Health Insurance Board. He claimed that the defendant had to pay an additional amount of 120 Austrian schillings (ATS) for doctor’s fees.

On 2 April 1997 the Joint Arbitration Committee (Paritätische Schiedskommission) dismissed the applicant’s claim. The applicant appealed against this decision.

On 2 July 1998 the Regional Appeals Commission (Landesberufungskommission) dismissed the appeal.

On 25 September 1998 the applicant lodged a complaint with the Constitutional Court. He alleged, inter alia, that the general agreement between the Association of Social Insurance Boards (Hauptverband der Sozialversicherungsträger) and the Tyrol Medical Association (Ärztekammer) on which his doctor’s fees were based violated his constitutional right to non-discrimination (Recht auf Gleichheit).

On 15 April 1999 he amended his complaint and alleged that the Regional Appeals Commission was no independent and impartial tribunal within the meaning of Article 6 of the Convention by virtue of its composition.

On 17 December 1999 the Constitutional Court dismissed the complaint. It did not accept that the Regional Appeals Commission’s decision had violated the applicant’s constitutional rights. As regards the composition of the Regional Appeals Commission, the Constitutional Court noted that the applicant’s complaint had been lodged out of the statutory six months time-limit. However, referring to its constant case-law, it found that the applicant’s constitutional rights were not violated.

B. The second set of proceedings

On 11 February 1997 the applicant instituted proceedings against the Tyrol Regional Health Insurance Board. He claimed that it had to pay some ATS 18 million (about 1,3 million euros) as the doctor’s fees provided for in the general agreement between the Association of Social Insurance Boards and the Tyrol Medical Association were far too low and, therefore, his contract with the Regional Health Insurance Board was null and void.

On 11 August 1997 the applicant made a request for transfer of jurisdiction (Devolutionsantrag) as the Joint Arbitration Committee failed to decide within the statutory six months-period.

On 28 October 1997 the Regional Appeals Commission, after having held a hearing, dismissed the applicant’s claim.

On 15 December 1997 the applicant lodged a complaint with the Constitutional Court. He alleged that the contract between the Association of Social Insurance Boards and the Tyrol Medical Association on which his doctor’s fees were based violated his constitutional right to non-discrimination. Further, he complained that the Regional Appeals Commission was no independent and impartial tribunal within the meaning of Article 6 of the Convention by virtue of its composition and submitted that the Association of Social Insurance Boards had provided two deputy directors of the Tyrol Regional Health Insurance Board as assessors.

On 16 December 1999 the Constitutional Court dismissed the complaint. Referring to its constant case law, the Constitutional Court found that the Regional Appeals Commission in general may be considered as an independent and impartial tribunal because of the term of office of the members and because members were not bound by any instructions. Further it found that ... “It is true that the assessors of the Regional Appeals Commission are representatives of two conflicting spheres of interest. However, these members are not bound by instructions from the sending organisation ... and they are by no means spokespersons of these organisations. Their task is rather to bring their experience to bear in the proceedings. ... A violation of the required impartiality could, thus, ... be due to specific circumstances in the individual case resulting, for example from an official or organisational dependence of the appointed member of the Regional Appeals Commission. ... Such official or organisational dependence does, however, in the Constiutional Court’s view, not arise from the mere fact that the parties of the general agreement provide the assessors of the Regional Appeals Commission. ... In view of the legally guaranteed freedom from instructions of the members of the Regional Appeals Commission, a constellation affecting the appearance of independence and impartiality could - also in the light of the case Hortolomei v. Austria (cited above) - only exist if the appointed assessors had been involved in the preparation of the general agreement or if there were other specific reasons raising legitimate doubts about their independence and impartiality in determining certain legal matters. ...”

In conclusion, the Constitutional Court found no indication that the members of the Regional Appeals Commission lacked independence or impartiality.