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.