AS TO THE ADMISSIBILITY OF
Application no. 32872/03
by Mária SLIVKOVÁ
The European Court of Human Rights (Fourth Section), sitting on 14 December 2004 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr M. Pellonpää,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr J. Borrego Borrego,
Mr J. Šikuta, judges,
and Mr M. O'Boyle, Section Registrar,
Having regard to the above application lodged on 29 September 2003,
Having deliberated, decides as follows:
The applicant, Mrs Mária Slivková, is a Slovakian national who was born in 1943 and lives in Košice. She was represented before the Court by Mr O. Škodler, a lawyer practising in Bratislava.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a dentist and runs a private dental practice in Košice. As such, under section 26 of the Health Care Act (Law no. 277/1994 Coll), as amended (Zákon o zdravotnej starostlivosti), she is under an obligation to provide health care.
In 1998 and 1999 the applicant provided dental care to patients who were insured by a private insurer P. Under section 38 (3) of the Health Insurance Act (Law no. 273/1994 Coll), as amended (Zákon o zdravotnom poistení), P. was obliged to pay the applicant the costs of this care upon request within 30 days, late-payment interest being set pursuant to section 38 (4) of that Act at 1% per day. P. has however failed to make any payment.
On 1 July 1999 the Ministry of Health withdrew P.'s licence to provide health insurance as it did not have the prescribed number of insurance policies. Under section 34 (3) of the Health Insurance Act the Ministry decided that P.'s insurance policies would be assigned to the State-owned General Health Insurer (Všeobecná zdravotná poisťovňa). The Ministry noted that pursuant to section 28 (4) of that Act the State guaranteed the General Health Insurer's solvency and that, in the circumstances, the latter was the most appropriate body to secure the policyholders' constitutional right to healthcare. The Ministry ruled, lastly, that pursuant to section 34 (3) of the Act P.'s liabilities to private healthcare establishments and its receivables (insurance premiums and late-payment penalties) were transferred to the General Health Insurer. The decision became final and binding on 17 July 1999.
On 1 December 2000, at the General Health Insurer's request for a review under a special procedure, the Ministry upheld the decision of 1 July 1999. It observed that under section 34 (4) of the Health Insurance Act the withdrawal of P.'s licence meant that the winding up and liquidation proceedings had begun automatically, by operation of law. The liquidator's powers were confined to liquidating P.'s assets. The exact procedure was governed by the relevant provisions of the Commercial Code. Should the liquidator discover that P.'s assets did not suffice to satisfy its creditors, he or she was required to seek an insolvency order. The Ministry held that the General Health Insurer could by no means be considered to be P.'s general legal successor. The transfer of P.'s liabilities and claims to the General Health Insurer was governed by special legal provisions contained in section 34 (3) of the Health Insurance Act. Pursuant to that provision, the liabilities of an insurer on a winding-up passed to the designated insurer only to the extent that they could not be satisfied from the assets of the insurer that was being wound-up. In the present case it had not yet been established by the liquidator that P.'s assets were insufficient to satisfy its creditors. According to the Ministry, therefore, P.'s liabilities could not be considered as having been assumed by the General Health Insurer for the time being.
On 20 March 2001 P.'s liquidator filed a petition with the Bratislava Regional Court (Krajský súd) seeking an insolvency order against P. The Regional Court made the order on 20 April 2001 and it became final and binding on 21 May 2001. Under Article 13a of the Bankruptcy Code the declaration of insolvency automatically stayed the liquidation proceedings. The insolvency proceedings are still pending.
On 11 June 2001 the applicant unsuccessfully lodged a demand with the General Health Insurer for payment of the costs of the dental treatment.
On 1 July 2001 amendment no. 233/2001 Coll. to the Health Insurance Act entered into force. It added inter alia a new paragraph 6 to section 34 of the Act. It stipulated that where the outstanding liabilities of an insurance company in liquidation were passed on to a designated insurer, like the General Health Insurer in the present case, they were to be settled within 24 months from the date the liquidation accounts were approved or an insolvency order made. Such liabilities would to be settled from the liquidated insurance company's assets, from the State budget or from other sources designated by the State.
On 4 September 2001 the applicant, who was represented by a lawyer, brought a civil action against the General Health Insurer in the Bratislava V District Court (Okresný súd). She sought an order for the payment of 51,570 Slovakian korunas (SKK)1 for the above dental care plus late-payment interest. She submitted that the newly adopted paragraph 6 of section 34 of the Health Insurance Act was not applicable to her case as P.'s debt towards her had passed to the defendant prior to the entry into force of amendment no. 233/2001. In support of that argument she maintained that in January 2001 the defendant had settled 71.2% of P.'s outstanding debts to State-owned pharmacies. If P.'s outstanding debts had not been assumed by the General Health Insurer, there would have been no valid legal basis for such settlement. In its observations in defence, the defendant acknowledged the 71.2% settlement but maintained that it had been financed from extra-budgetary resources which had not been intended for it or for the liquidator.
On 19 December 2001, on a protest by the Prosecutor General, the Ministry quashed the ruling in its decision of 1 July 1999 that P.'s liabilities towards private healthcare establishments had been transferred to the General Health Insurer. The remainder of the decision of 1 July 1999 remained unaffected.
On 16 April 2002 the District Court dismissed the action after hearing the parties and examining complex documentary evidence. The District Court observed that although P. had been wound up and subsequently declared insolvent, it had not been struck off the business register and had retained its legal personality. The transfer of its liabilities to the General Heath Insurer was not automatic. As the insolvency and liquidation proceedings had not yet been completed, it could not be determined whether P. had any liabilities that could not be settled from its assets. It therefore could not be said whether – and if so which – of P.'s liabilities had been transferred to the defendant. Therefore, at the material time, there had been no cause of action against the General Health Insurer. Moreover, and in any event, the action was also premature in that, even assuming that P.'s debt to the applicant had passed on to the defendant, the time-limit under section 34 (6) of the Health Insurance Act for its settlement had not yet expired. As to the temporal application of the Health Insurance Act, the District Court observed that amendment no. 233/2001 contained no transitional provisions. It concluded that the Health Insurance Act was thus to be applied as worded on the day of the judgment. The District Court dismissed the applicant's argument based on the partial settlement of P.'s debts towards State owned pharmacies observing that the settlement had been arranged by P.'s liquidator and financed from non-budgetary resources, the defendant merely having played the role of an administrator in the transaction. The District Court observed, lastly, that the 24 month period laid down by amendment no. 233/2001 had been adopted in order to enable the State to raise the financial resources necessary to settle the liabilities of insolvent private health insurers.
On 20 May 2002 the applicant, assisted by a lawyer, appealed against the judgment of 16 April 2002. She reiterated the arguments she had made in the District Court. In its observations in reply, the General Health Insurer pointed out that P.'s insolvency and the liquidation of its assets had not affected its legal existence, and it still had assets that needed to be realised and the proceeds distributed. Only then could it be established which, if any, of P.'s liabilities could not be settled and would consequently pass to the General Health Insurer. Furthermore, only at that point would it become clear what additional funds would have to be raised in order to cover the transferred liabilities, a process for which amendment no. 233/2001 had afforded a period of 24 months.
On 14 November 2002 the Bratislava Regional Court upheld the judgment of 16 April 2002. It noted that the order declaring P. insolvent became effective on 21 May 2001. Pursuant to section 34 (6) of the Health Insurance Act any of P.'s liabilities which had been taken over by the General Health Insurer were not payable until 24 months after the insolvency order, that is to say until 21 May 2003. Thus, above all, the action was premature.
On 1 January 2003 amendment no. 671/2002 Coll. to the Health Insurance Act entered into force. It inter alia modified the wording of section 34 (4) by providing that if the amounts obtained by realising the liquidated insurance company's assets did not suffice to cover its liabilities in full, only that portion of the outstanding liabilities that represented principal (exclusive of any penalties for late payment) was payable.
In March 2003 the applicant, who was represented by a lawyer, lodged a complaint with the Constitutional Court (Ústavný súd) under Article 127 of the Constitution. She formally directed her complaint against the District Court and the Regional Court and objected that the decision to apply Article 34 (6) of the Health Insurance Act, as amended by amendment no. 233/2001, and to dismiss her the action she had brought on 4 September 2001 had infringed her right to equality of ownership (Article 11 of the Charter of Fundamental Rights and Freedoms (Listina základných práv a slobôd)), her right to equality (Article 12 §§ 1 and 2 of the Constitution), her freedom of choice of occupation and business (Article 35 § 1 of the Constitution) and her property rights (Article 20 of the Constitution and Article 1 of Protocol No. 1). She also maintained that the alleged violations constituted a breach of the principle of the rule of law enshrined in Article 1 of the Constitution. She asserted that amendment no. 233/2001 had retrospectively and substantially changed the conditions under which she had entered the entrepreneurial environment and had disproportionately and without any acceptable justification postponed the settlement of her claim.
On 16 April 2003 the Constitutional Court declared the complaint inadmissible. Observing that the complaint was formally directed against the District Court and the Regional Court, it found that there was no connection between those courts' decisions, which were in conformity with the relevant laws, and the alleged violation of the applicant's right to equality, equality of ownership and freedom of choice of occupation and business. The Constitutional Court also observed that the right to freedom of choice of business did not afford any protection from entrepreneurial risk, a part of which was the risk that one's business partners may became insolvent. That part of the complaint was therefore manifestly ill-founded. In so far as the applicant complained of a violation of her property rights, the Constitutional Court observed that the task of protecting those rights had been entrusted to the ordinary courts. It therefore found that in accordance with the subsidiarity principle it had no jurisdiction to entertain that part of the applicant's complaint.
1. The applicant complained under Article 6 § 1 of the Convention of procedural unfairness in the action she had brought on 4 September 2001 in that the courts' decision had been arbitrary and had left her at a disadvantage. In particular, she contested as being wrong in law the courts' findings concerning the date when P.'s liabilities were transferred to the General Health Insurer and the retrospective effect of amendment no. 233/2001. She further objected that that amendment and amendment no. 671/2002 were inconsistent with the principle requiring equality of arms in those proceedings.
2. The applicant also complained that there had been a violation of her rights under Article 1 of Protocol No. 1. She maintained that in providing for dental care on a commercial basis, the Health Care Act imposed a duty on her to provide such care while the Health Insurance Act afforded her a series of guarantees that she would be paid. She had provided dental care in good faith and was thus automatically entitled to payment for her services and interest in the event of late payment. When P. became unable to pay its debt, which it did at the latest when it was declared insolvent, her claim was redirected against the General Health Insurer and was directly enforceable against it. Amendment no. 233/2001, however, postponed with retrospective effect the date her claim became enforceable, while amendment no. 671/2002 reduced the value of the claim to the principal only. The applicant argued that amendments nos. 233/2001 and 671/2002 pursued no legitimate aim and that their effects on her were disproportionate.
1. The applicant complained that the proceedings had fallen short of the standard required for a fair trial; in particular, the principle of equality of arms had not been complied with. She relied on Article 6 § 1 of the Convention which, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
The Court reiterates, firstly, that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, among other authorities, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).
The principle of equality of arms is one element of the broader concept of fair trial, within the meaning of Article 6 § 1 of the Convention. It requires “a fair balance between the parties”: each party must be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, among other authorities, Ankerl v. Switzerland, no. 17748/91, § 38, ECHR 1996-V and Kress v. France [GC], no. 39594/98, § 72, ECHR 2001-VI).
In the present case the applicant's action was examined by courts at two levels of jurisdiction. The parties were heard and the courts considered complex documentary evidence. The proceedings were adversarial and the applicant, who was represented by a lawyer throughout, was provided with ample opportunity to state her arguments, challenge the submissions made by the defendant and to submit any evidence she considered relevant to the outcome. Both the District Court and the Regional Court found that, as amendment no. 233/2001 contained no transitional provisions, it had to be interpreted as amending the Health Insurance Act from the day the amendment entered into force. Both courts thus applied the Health Insurance Act as worded on the day of their decisions and accordingly found that the applicant's action had been instituted prematurely. The District Court and the Regional Court supported their findings by reasoning that does not appear to be manifestly arbitrary or wrong.
The Court further observes that amendment no. 233/2001 entered into force on 1 July 2001, that is to say prior to the commencement of the proceedings on 4 September 2001. The proceedings had ended by the time the Regional Court handed down its decision on 14 November 2002, that is to say before amendment no. 671/2002 entered into force on 1 January 2003. These amendments therefore could not have interfered with the judicial determination of the applicant's dispute within the meaning of Article 6 § 1 of the Convention (see, e.g., the Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no. 301-B, pp. 81-82, §§ 47-50).
In the light of these considerations the Court has found no indication of a violation of the applicant's right to a fair trial under Article 6 § 1 of the Convention.
It follows that the complaint under this provision is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant further complained that, as a consequence of amendments nos. 233/2001 and 671/2002, there had been a violation of her rights protected under Article 1 of Protocol No.1, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Court reiterates that Article 34 of the Convention requires that an individual applicant should claim to have been actually affected by the violation he alleges. That Article does not institute for individuals a kind of actio popularis for the interpretation of the Convention; it does not permit individuals to complain against a law in abstracto simply because they consider that it contravenes the Convention. In principle, it does not suffice for an individual applicant to claim that the mere existence of a law violates his rights under the Convention; it is necessary that the law should have been applied to his detriment (see Klass and Others v. Germany, judgment of 6 September 1978, Series A no. 28, pp. 17-18, § 33).
Turning to the facts of the present case, the Court observes that the proceedings concerning the liquidation of P.'s assets are currently stayed and the related insolvency proceedings are still pending. As noted by the District Court in its judgment of 16 April 2002, therefore, it is not possible at present to determine whether P. has any liabilities which cannot be settled from its assets. Until that issue has been decided, it is not possible to establish what, if any, adverse effects the contested amendments will ultimately have on the applicant.
The Court therefore finds that this part of the application is premature and, as such, must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Michael O'Boyle Nicolas Bratza
SLIVKOVÁ v. SLOVAKIA DECISION
SLIVKOVÁ v. SLOVAKIA DECISION