DUDEK v. GERMANY
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mr Henry Dudek, is a German national who was born in 1947 and lives in Lohne. He was represented by Noreck Hoyer Dudek, a firm of lawyers practising in Hannover. The German Government (“the Government”) were represented by their Deputy Agent, Mr H.-J. Behrens, Ministerialrat, of the Federal Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is a dentist and member of the Lower Saxony Association of Contractual Dentists (Kassenzahnärztliche Vereinigung Niedersachsen) (“the Association”), the self-governing body of the contractual dentists practising in the Land Lower Saxony. The Association is responsible for, inter alia, entering into contracts with public health insurers on behalf of its members, checking costs brought to account by its members, distributing reimbursements for contractual work paid by public health insurers, and allocating the effects of austerity measures in the public health sector among its members in conformity with decisions of its council. Contractual dentists are free to treat other patients, in particular those who are insured by private health insurers. The Association is not concerned with remuneration for such work. The applicant was involved in numerous sets of proceedings against the Association or Committees affiliated with it before the social courts concerning aspects of his remuneration as a contractual dentist. On 25 August 2009 the President of the Fifth Section communicated the complaints regarding the length of the proceedings to the Government, together with those concerning eleven other sets of domestic proceedings which had been decided or were then still pending before the same judicial formations. On 4 February 2003 the Association deducted an amount of 97.06 Euros (“EUR”) from expenses for material and laboratory services brought to account by the applicant in regard to the orthodontic treatment of one patient because the applicant had significantly exceeded the initial estimations by the public health insurer concerned in regard to those specific expenses. On 6 February and 12 June 2003 the applicant made unsuccessful administrative complaints. On 22 January 2004 he brought an action against the Association before the Hanover Social Court (“the Social Court”). On 12 January 2009 the applicant requested the Social Court to take additional evidence, namely that the initial calculations of public health insurers were not binding for the dentist concerned and that he had not exceeded the initial global estimations of expenses. On 14 January 2009 the Social Court held an oral hearing at the end of which it dismissed the action, refused leave to appeal and refused to hear additional evidence. On 7 February 2009 the applicant lodged a complaint against the refusal to be granted leave to appeal before the Lower-Saxony Bremen Social Court of Appeal (“the Social Court of Appeal”). On the same day he lodged a constitutional complaint with the Federal Constitutional Court in which he complained that the Social Court had taken no action. On 3 March 2009 the Federal Constitutional Court declared the constitutional complaint inadmissible, without giving further reasons (1 BvR 383/09). On 4 February 2010 the Social Court of Appeal dismissed the complaint; on 1 April 2010 it dismissed the applicant’s appeal for the right to be heard against this decision. Also on 4 April 2010 it dismissed as inadmissible the applicant’s appeal against the Social Court’s refusal to hear additional evidence; it subsequently ordered that no court fees be imposed in view of an incorrect instruction on the right to appeal issued by the Social Court. In the proceedings before the Court, the applicant requested at least EUR 15,000 in regard to non-pecuniary and 44,178.98 German marks (“DEM”) (= EUR 22,588.35) in regard to pecuniary damage. On 14 October 2002 EUR 71.05 were deducted from the expenses for personnel and drugs brought to account by the applicant. On 12 November 2002 the applicant made an unsuccessful administrative complaint. On 14 April 2003 he brought an action against the Complaints Committee at the Dentistry Economic Efficiency Office before the Social Court. On 23 July 2008 the Social Court dismissed the action on the grounds that the deduction had been lawful because the applicant’s expenses had been excessive in comparison to other dental practices. On 15 September 2008 the applicant lodged a complaint against the refusal to be granted leave to appeal before the Social Court of Appeal. On 7 February 2009 the applicant lodged a constitutional complaint with the Federal Constitutional Court in which he complained that the Social Court had taken no action. On 3 March 2009 the Federal Constitutional Court declared the constitutional complaint inadmissible, without giving further reasons (1 BvR 330/09). On 28 April 2010 the Social Court of Appeal dismissed the complaint. In the proceedings before the Court, the applicant requested at least EUR 15,000 in regard to non-pecuniary and DEM 135,296.12 (= EUR 69,175.81) in regard to pecuniary damage. On 11 March 2003 EUR 208 were deducted from the expenses brought to account by the applicant for the practice overhead in regard to costs for personnel as well as drugs. On 14 April 2003 the applicant made an unsuccessful administrative complaint. On 15 December 2003 he brought an action against the Complaints Committee at the Association before the Hanover Social Court. On 12 January 2009 he requested the Social Court to take additional evidence, namely that he was entitled to the expenses requested for the practice overhead; that the expenses brought to account by him were to be calculated using specific criteria; and that the practice overhead of unamortised dental practices such as his was higher than the one of amortised practises. On 14 January 2009 the Social Court held an oral hearing at the end of which it dismissed the action, refused leave to appeal and refused to hear additional evidence. On 7 February 2009 the applicant lodged a complaint against the refusal to be granted leave to appeal before the Social Court of Appeal. On the same day he lodged a constitutional complaint with the Federal Constitutional Court in which he complained that the Social Court had taken no action. On 3 March 2009 the Federal Constitutional Court declared the constitutional complaint inadmissible, without giving further reasons (1 BvR 347/09). On 4 February 2010 the Social Court of Appeal dismissed the complaint; on 1 April 2010 it dismissed the applicant’s appeal for the right to be heard against this decision. Also on 4 April 2010 it dismissed as inadmissible the applicant’s appeal against the Social Court’s refusal to hear additional evidence; it subsequently ordered that no court fees be imposed in view of an incorrect instruction on the right to appeal issued by the Social Court. In the proceedings before the Court, the applicant requested at least EUR 15,000 in regard to non-pecuniary and DEM 135,296.12 (= EUR 69,175.81) in regard to pecuniary damage. On 21 January 2003 EUR 213.16 were deducted from the expenses brought to account by the applicant for the practice overhead in regard to costs for personnel as well as drugs. On 23 January 2003 the applicant made an unsuccessful administrative complaint. On 21 July 2003 he brought an action against the Complaints Committee of the Dentistry Economic Efficiency Office before the Hanover Social Court. On 22 July 2008 he requested that a scheduled oral hearing be adjourned until a decision on his legal aid request became final. On 23 July 2008 the Social Court held an oral hearing and dismissed the action. On 14 September 2008 the applicant lodged a complaint against the refusal to be granted leave to appeal before the Social Court of Appeal, which dismissed the complaint on 28 April 2010. On 7 February 2009 the applicant lodged a constitutional complaint with the Federal Constitutional Court in which he complained that the Social Court had taken no action. On 3 March 2009 the Federal Constitutional Court declared the constitutional complaint inadmissible, without giving further reasons (1 BvR 382/09). In the proceedings before the Court, the applicant requested at least EUR 15,000 in regard to non-pecuniary and DEM 135,296.12 (= EUR 69,175.81) in regard to pecuniary damage. On 5 May 2004 the Prosthodontics Conciliation Committee (“the Conciliation Committee”) at the Association ordered the applicant to reimburse EUR 312.17 for the defective implantation of a lower jaw prosthesis. On 8 June 2004 the applicant made an unsuccessful administrative complaint. On 4 April 2005 he brought an action against the Conciliation Committee before the Hanover Social Court, which granted the action on 25 February 2009. In the proceedings before the Court, the applicant requested at least EUR 15,000 in regard to non-pecuniary damage.