CASE OF MITKOVA v. THE FORMER YUGOSLAV REPUBLIC
(Application no. 48386/09)
15 October 2015
In the case of Mitkova v. the former Yugoslav Republic of Macedonia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
András Sajó, President,
Mirjana Lazarova Trajkovska,
Paulo Pinto de Albuquerque,
Dmitry Dedov, judges,
and Sřren Nielsen, Section Registrar,
Having deliberated in private on 22 September 2015,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 48386/09) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Macedonian national, Ms Maja Mitkova (“the applicant”), on 4 September 2009.
2. The applicant was represented by Mr A. Godžo and Mr D. Godžo, lawyers practising in Ohrid. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov.
3. The applicant complained, in particular, under Article 6 of the Convention about the lack of an oral hearing and the length of administrative proceedings for reimbursement of expenses for medical treatment abroad, as well as that the partial reimbursement of those expenses had violated her rights under Article 1 of Protocol No. 1 to the Convention.
4. On 13 December 2012 these complaints were communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1954 and lives in Ohrid.
A. Background of the case
6. The applicant is suffering from multiple sclerosis.
7. On 1 April 1994 the Ministry of Health (“the Ministry”) issued a certificate allowing a bank, in which the applicant’s father had a foreign currency savings account, to transfer 20,000 United States dollars into the account of a hospital in the United States, in order to cover medical expenses related to treatment which the applicant was expected to undergo. It was given on the basis of a medical report (конзилијарно мислење) issued by the Skopje Neurology Clinic which stated, inter alia:
“... [the applicant] is suffering from multiple sclerosis, which requires further medical examination and treatment in a medical institution abroad, given the fact that all possibilities for her treatment in the State are exhausted ...”
8. Between 17 May and 28 June 1994 the applicant underwent medical treatment in the hospital H.H.I. in the United States.
9. On 12 July 1994 the Skopje Neurology Clinic issued another medical report (конзилијарно мислење, “the report of 12 July 1994”), the relevant part of which reads as follows:
“It is impossible to treat the disease in the State due to the critical state of [the applicant’s] health and the Clinic’s calendar of events. [The applicant] should leave immediately or by the middle of the month at the latest ...”
10. The report was signed by three doctors, who confirmed that it was impossible to treat the disease in the respondent State. As stated in the report, it was expected that the treatment abroad would prevent the progressive deterioration of the applicant’s health.
B. First administrative proceedings
11. On 29 November 1994 the applicant requested that the Health Insurance Fund (“the Fund”) issue ex post facto a decision referring her to be treated in hospital H.H.I. (решение за упатување на лекување во странство). This request did not contain a claim for reimbursement of the expenses for the treatment that she had undergone.
12. On 8 December 1994 the Fund dismissed the applicant’s request after an expert commission set up within the Fund (“the Fund’s commission”) had provided an opinion that the applicant could have been treated in the respondent State.
13. On 21 March 1995 the applicant appealed against the Fund’s decision to the Ministry, arguing that the Fund’s expert commission had not taken into account the report of 12 July 1994 (see paragraph 9 above). She also requested that the Ministry approve further check-ups and treatment in hospital H.H.I.
14. On 30 November 1995 the Ministry, as the second-instance administrative body, dismissed the applicant’s appeal after obtaining an opinion from the Second-Instance Medical Commission for Treatment Abroad (“the Second-Instance Commission”). The Ministry found that the possibilities for treatment in the State had not been exhausted.
15. The applicant initiated administrative-dispute proceedings before the Supreme Court. On 14 January 1998 the Supreme Court quashed the Ministry’s decision. It found that it had not been clear whether the applicant was supposed to undergo a medical check-up or prolonged treatment abroad and that there was a contradiction in the medical reports as to whether the possibilities to treat the applicant’s condition domestically had been exhausted.
16. On 9 July 1999 the Ministry again dismissed the appeal by the applicant against the Fund’s decision of 8 December 1994.
C. Second administrative proceedings
17. In so far as can be established from the available material, on 7 July 1995 the applicant lodged a separate request with the Fund for reimbursement of the expenses for the treatment that she had undergone in hospital H.H.I.
18. On 21 September 1995 the Fund ordered a partial reimbursement of the medical expenses in the amount of 278,311 Macedonian denars (MKD), or 20% of the expenses actually incurred. On 12 November 1995 the decision was adjusted to 10%. It appears that on 13 November 1995 the awarded amount was increased to MKD 313,100.
19. On 11 November 1996 the Ministry examined the applicant’s appeal and increased the award by an additional MKD 50,215.
20. The applicant challenged the latter decision with an administrative-dispute claim before the Supreme Court.
21. On 25 March 1998 the Supreme Court quashed the decision of 11 November 1996. It found that the Fund and the Ministry had failed to assess whether the applicant could have been treated in the State, in accordance with the Rules on the Conditions and Manner of Referral of Insured Persons for Treatment Abroad (see paragraphs 38-41 below). It further found that these bodies interpreted section 15 of the Rules to signify that a person was not entitled to reimbursement of expenses if he/she had not obtained a prior decision referring him/her for treatment abroad (решение за упатување на лекување во странство). In the court’s view, such an interpretation would be contrary to the Health Protection Act.
22. On 6 January 1999 the Ministry reached an identical decision to that of 11 November 1996.
23. The applicant initiated administrative-dispute proceedings against the Ministry’s decision.
D. Joint proceedings
24. On 22 November 2000 the Supreme Court quashed both the decision of 6 January 1999 (see paragraph 22 above) and the decision of 9 July 1999 (see paragraph 16 above). It found that the Ministry should have joined the proceedings for reimbursement of the medical expenses incurred in hospital H.H.I. with the proceedings for referral for treatment abroad. It should have decided in the first place the request for referral to treatment abroad, the outcome of which was decisive for the applicant’s claim for reimbursement of the medical expenses. It again instructed the Ministry to assess whether the applicant could have been treated in the State.
25. On 23 February 2001 the Ministry quashed the decision of 21 September 1995 (see paragraph 18 above) and decided that the applicant’s treatment abroad could not be recognised as treatment abroad based on a decision of the Fund. Nevertheless, the applicant was to be reimbursed the expenses for treatment abroad not based on such a decision, in the amount of MKD 378,741. The Ministry came to its conclusion on the basis of an opinion of a medical commission of 14 December 2000 which found that the applicant could be treated in the respondent State.
26. The applicant again challenged the Ministry’s decision before the Supreme Court.
27. On 13 November 2003 the Supreme Court quashed the decision, finding that the administrative bodies had not established whether at the time of the treatment the possibilities for treatment in the respondent State had been exhausted.
28. On 5 November 2004 the Ministry again dismissed the appeal against the decision of 21 September 1995, this time based on a conclusion of the Second-Instance Commission of 3 November 2004 that the applicant could have been treated in the respondent State in 1994.
29. On 14 December 2006 the Supreme Court again quashed the decision of the Ministry. The court found that there had been conflicting medical evidence as to whether the applicant could have been treated in the respondent State at the relevant time. It further requested that the doctors who had drawn up the report of 12 July 1994 give evidence as to whether the possibilities for treatment of the specific condition in the State in 1994 had been exhausted.
30. After having consulted the doctors, on 8 October 2007, the Ministry again dismissed the applicant’s appeal against the decision of 21 September 1995. The relevant part of the decision reads as follows:
“The Minister of Health ... on the basis of all the documents in the file established that the [applicant’s] treatment in the [H.H.I. hospital] cannot be considered as treatment abroad based on a decision of the [Fund] in accordance with sections 7, 9 and 10 of the Rules for Referral for Treatment Abroad (Official Gazette nos. 3/92, 11/92, 32/92 and 48/92) and in accordance with sections 5, 7 and 8 of the subsequently adopted Rules on the Manner of Using Health Services Abroad (Official Gazette no. 111/2000) because under the provisions of both sets of Rules the medical opinion of the respective clinic is merely a proposal for referral for treatment abroad of an insured person, and the assessment and the opinion on the need for treatment abroad is provided by the [Fund’s commission], which assesses whether the possibilities for treatment in the State are exhausted and whether there are possibilities for successful treatment abroad, in which State and in which foreign medical facility.
The insured person obtains the right to treatment abroad only by a decision of the [Fund] on the basis of a finding of the [Fund’s commission]. It is a fact that the [applicant] went for treatment abroad without [having obtained] a decision of the [Fund] on her own assessment, given that at that moment there was not even a medical report [by the clinic] which is only a proposal of the clinic for referral to treatment abroad.
In the entire proceedings the first- and second-instance bodies acted in accordance with the provisions of the Rules for [Referral to Treatment Abroad] and, in line with section 15 of the Rules, they decided to reimburse expenses as if the treatment had been performed in the [respondent] State, for the reason that the [applicant] had not obtained a right to be treated abroad because the competent commission had found that that condition had been treatable in the State ...
... That the Supreme Court in its last judgment requests that the members who provided the medical report of 1994 [give evidence] ... is irrelevant, given that the medical report is an initiative - a proposal for initiating certain proceedings - but [it does] not [confer] a right to be treated abroad.
If, in the court’s view, the medical report was decisive in the present case, a question arises as to what the competence of the [Fund’s commission] is and why there are provisions in the Rules ... and prescribed proceedings for obtaining the right to treatment abroad.
Having in mind the fact that the [Fund’s commission] for referral for treatment abroad, in the present case, had on multiple occasions found that the possibilities for treatment in the existing health institutions at the Skopje Clinic had not been exhausted ... the case is considered under section 15 [of the Rules of 1992], that is section 20 [of the Rules of 2000] ... , and it was decided that expenses for the treatment be reimbursed to the [applicant] in line with the price list for health services in the [respondent State].”
31. The applicant challenged the Ministry’s decision seeking under the Administrative Disputes Act (see “Relevant domestic law” below) that the Supreme Court hold an oral hearing in order to take evidence from the doctors who had drawn up the 1994 report, the Chairman of the Ministry’s Second-Instance Commission and Dr R.L., the doctor who had treated her. She referred to the certificate of 1 April 1994 (see paragraph 7 above) and the medical report that it had been based on. She argued that, in view of her condition at that juncture and the short period of available time, she had not lodged a request to the Fund before leaving as she had considered that she could have done it after her return to the State. She further argued that the Ministry had failed to decide her claim for referral for treatment abroad and had only decided the claim for reimbursement of expenses.
32. On 22 January 2009 the Administrative Court, which had meanwhile become competent to decide administrative disputes, held a private session and finally dismissed the applicant’s appeal. It did not in its decision address the applicant’s request for an oral hearing.
33. The court referred to section 10 § 1 (14) and section 30 of the 2000 Health Insurance Act, as well as sections 20 of the Rules on the Manner of Using Health Services Abroad (see paragraphs 37, 41 and 42 below). It ruled that the administrative bodies had correctly applied the applicable law in awarding the applicant partial compensation for the medical expenses for her treatment in hospital H.H.I. in 1994. The relevant parts of the judgment stated as follows:
“... In the present case, [the applicant] went for treatment abroad without [having obtained] a decision of [the Fund], on her own assessment, and without a medical report, which she obtained after she had returned from the U.S.A. from the Skopje Neurology Clinic on 12 July 1994, contrary to section 30 of the 2000 Health Insurance Act.
The court considers that the [administrative] bodies in the proceedings correctly established that the [applicant’s] treatment in the [H.H.I.] hospital in the U.S.A. cannot be considered as treatment abroad based on a decision of [the Fund] in accordance with sections 7, 9 and 10 of the Rules for referral for treatment abroad (Official Gazette nos. 3/92, 11/92, 32/92 and 48/92) and in accordance with sections 5, 7 and 8 of the Rules on the Manner of Using Health Services Abroad (Official Gazette no. 111/2000), because under the provisions of the two [sets of] Rules the medical report of the relevant clinic is only a proposal for referral for treatment abroad of an insured person, and the assessment and the opinion on the need for treatment abroad is provided by the [Fund’s commission], which assesses whether the possibilities for treatment in the State are exhausted and whether there are possibilities for successful treatment of the condition abroad and in which country or in which foreign medical institution.
In deciding, the court assessed [the applicant’s] arguments that in [the respondent State] there had been no possibility of a successful continuation of her treatment and that there had been a need to continue the treatment abroad, but found them groundless since, according to the expert opinion of the Neurology Clinic, all cases of multiple sclerosis have always been treated in the State wherein the therapeutic procedures for these diseases are in accordance with international medical standards. Hence, the court considers that the [administrative] bodies acted in accordance with the Supreme Court’s instructions and removed the breaches in the proceedings in terms of clarification of the contradictions which had existed before, deciding to award expenses as if the treatment had been conducted in the State, under the terms of section 15 of the Rules for Referral to Treatment Abroad, given that [the applicant] had not obtained the right to be treated abroad because the competent [Fund’s commission] had provided its opinion that the condition had been treatable in the State.”
34. This judgment was served on the applicant on 6 March 2009.
II. RELEVANT DOMESTIC LAW
A. Administrative Disputes Act of 2006 (Закон за управните спорови, Official Gazette no. 62/2006)
35. Section 30 of the Act applicable at the material time provided that the court decides, in principle, at a hearing held in private. It could hold a public oral hearing in the following situations: if the case was complex; in order to clarify matters (поради подобро разјаснување на состојбата на работата); and to establish facts and adduce evidence. For the same reasons, a party to the proceedings could request that the court hold a public hearing.
Section 40 § 1 (5) and (6) provided that the court had to decide the merits of the case when inter alia it had previously quashed the administrative decision and the administrative body had failed to implement the court’s instructions or when the administrative body had acted contrary to the court’s legal opinion or to the court’s observations concerning the proceedings and the claimant had lodged a fresh administrative-dispute claim.
B. Health Protection Act of 1991 (Закон за здравствената заштита, Official Gazette nos. 38/91, 46/93 and 55/95)
36. Under section 44 of the Act, a person suffering from a disease that could not be treated in the State was entitled to receive medical assistance abroad where such a disease could be successfully treated, under conditions specified by the Rules of the Ministry of Health.
C. Health Insurance Act of 2000 (Закон за здравственото осигурување, Official Gazette no. 25/2000)
37. Section 10 § 1 (14) of the Act provided that compulsory medical insurance did not cover medical treatment abroad unauthorised by the Fund regarding costs that exceeded those for the corresponding services in the State.
Section 30 provided for the same rules specified in section 44 of 1991 Health Protection Act.
D. Rules on the Conditions and the Manner of Referral of the Insured Persons to Treatment Abroad (“Rules on the Referral to Treatment Abroad”, Правилник за условите и начинот на упатување на осигурениците на лекување во странство, Official Gazette nos. 3/92, 11/92 and 48/92)
38. Under section 3 of the Rules, the proceedings for referral for treatment abroad were initiated upon the insured person’s request. Under section 5, a proposal, that is a medical opinion of the appropriate clinic at the Skopje Faculty of Medicine, as well as the necessary medical documents, particularly more recent ones, was attached to the request.
39. Section 7 provided that the Fund’s First-Instance Medical Commission for Treatment Abroad made an assessment and provided its opinion on the need for treatment abroad. Under section 9, the opinion of the commission included also the issue as to whether all possibilities for treatment in the State had been exhausted and whether there had been possibilities for successful treatment abroad and in which country or foreign medical facility. Under section 10, the Fund issued a decision for referral for treatment abroad on the basis of the documents referred to in section 5 of the Rules and the assessment and opinion of the First-Instance Medical Commission.
40. Under section 12, exceptionally, when there was a direct danger to the insured person’s life, the Fund referred him/her to treatment abroad as a matter of urgency upon a proposal of the appropriate clinic at the Skopje Faculty of Medicine.
41. Under section 15, if the person insured with the Fund had been treated in a foreign medical institution without having obtained a decision referring him/her to treatment abroad, the Fund could reimburse part of the expenses up to the maximum of the established cost of the respective treatment with the difference in the amount for the treatment, travel and per diem expenses borne by him/her.
E. Rules on the Manner of Using Health Services Abroad by Insured Persons (Правилник за начинот на користење на здравствени услуги на осигурените лица во странство, Official Gazette nos. 111/00, 31/03 and 113/05)
42. Sections 2, 3, 5, 7 and 8 of the Rules provided for the same rules specified under sections 3, 5, 7, 9 and 10, respectively, of the Rules for Referral for Treatment Abroad (see paragraphs 37 and 38 above).
43. Under section 20, if the insured person was treated in a foreign medical institution without having obtained a decision referring him/her for treatment abroad, and if the treatment concerned a condition that had not been treatable in the State, part of the expenses up to the established cost of the respective treatment could be reimbursed, and the difference in the amount of expenses for the treatment, travel and per diem expenses would be borne by him/her.
I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
44. The applicant complained about the length of the administrative proceedings and the lack of an oral hearing under Article 6 of the Convention, the relevant part of which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time ...”
45. The Government did not raise any objection as to the admissibility of these complaints.
46. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
1. The length of the proceedings
(a) The parties’ submissions
47. The Government accepted that the impugned proceedings had lasted unreasonably long time.
48. The applicant did not submit any comments in reply.
(b) The Court’s assessment
49. The Court observes that the first administrative proceedings were instituted on 29 November 1994. However, the period to be taken into consideration began only on 21 March 1995 when the applicant appealed against the first-instance decision. It was then that a “dispute” within the meaning of Article 6 § 1 arose (see, for example, Štokalo and Others v. Croatia, no. 15233/05, § 48, 16 October 2008, and Janssen v. Germany, no. 23959/94, § 40, 20 December 2001). The proceedings ended on 6 March 2009. They therefore lasted thirteen years, eleven months and nineteen days, at two levels of jurisdiction, of which eleven years, ten months and twenty eight days fall within the Court’s jurisdiction ratione temporis (after 10 April 1997, the date of ratification of the Convention by the respondent State).
50. The Court reiterates that the reasonableness of the length of 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 applicants and the relevant authorities; and what was at stake for the applicants in the dispute (see Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
51. The Court takes note of the Government’s acknowledgment that the impugned proceedings were excessive and failed to meet the “reasonable time “ requirement and sees no reason to hold otherwise as it has frequently found violations of Article 6 § 1 of the Convention in cases raising similar issues as the present one (see Docevski v. the former Yugoslav Republic of Macedonia, no. 66907/01, 1 March 2007; Ogražden Ad and Others v. the former Yugoslav Republic of Macedonia, nos. 35630/04, 53442/07 and 42580/09, 29 May 2012; Dimitrijoski v. the former Yugoslav Republic of Macedonia, 3129/04, 10 October 2013; and Šterjov and Others v. the former Yugoslav Republic of Macedonia, 40160/04, 16 October 2014).
52. There has accordingly been a breach of Article 6 § 1 of the Convention.
2. The lack of an oral hearing
(a) The parties’ submissions
53. The Government argued that the Administrative Court had decided the case on the basis of facts which had been sufficiently established by the administrative bodies. The case had not been complex and it had not required additional evidence to be adduced before the court. The Administrative Court had not reassessed the facts, but had decided on purely legal issues related to the interpretation of the relevant legislation. In its judgment it considered the issue of whether in the relevant period there were conditions for treating the applicant in the respondent State irrelevant and excluded it from its consideration. They further argued that holding a hearing in the case would run contrary to the principle of efficiency and economy of the proceedings, especially in view of their length. The issues decided by the court did not require a public hearing and, in view of the nature of the present issue, it could have been expected that the applicant would have requested that the public be excluded. The fact that the Administrative Court did not address the applicant’s request for a public hearing only concerned the reasoning of the court’s judgment.
54. The applicant replied that the lack of a public hearing in the present case had not been predicated by urgency given that the Government themselves accepted that the impugned proceedings had lasted an unreasonably long time. She further argued that owing to the failure to hold a public hearing in the case, the public was prevented from observing the administration of justice.
(b) The Court’s assessment
55. The Court firstly notes that both the Government and the applicant in their observations referred to the issue at stake as concerning a lack of public hearing. The Court, however, will proceed to examine the case as raising an issue of lack of oral hearing, as it was initially raised by the applicant in her application and as it was communicated to the parties.
56. The Court reiterates that in proceedings before a court of first and only instance the right to a “public hearing” under Article 6 § 1 entails an entitlement to an “oral hearing” unless there are exceptional circumstances that justify dispensing with such a hearing (see, for instance, Miller v. Sweden, no. 55853/00, § 29, 8 February 2005; Eriksson v. Sweden, no. 60437/08, § 64, 12 April 2012; and Schädler-Eberle v. Liechtenstein, no. 56422/09, § 97, 18 July 2013).
57. The exceptional character of the circumstances that may justify dispensing with an oral hearing essentially comes down to the nature of the issues to be decided by the competent national court, not to the frequency of such situations. It does not mean that refusing to hold an oral hearing may be justified only in rare cases. The Court has recognised that disputes concerning benefits under social-security schemes are generally rather technical, often involving numerous figures, and their outcome usually depends on written opinions given by medical doctors. Many such disputes may accordingly be better dealt with in writing than in oral argument. Moreover, it is understandable that in this sphere national authorities should have regard to the demands of efficiency and economy. Systematically holding hearings could be an obstacle to the particular diligence required in social-security cases (see Schuler-Zgraggen v. Switzerland, 24 June 1993, § 58, Series A no. 263; Salomonsson v. Sweden, no. 38978/97, § 38, 12 November 2002; Döry v. Sweden, no. 28394/95, § 41, 12 November 2002; and Lundevall v. Sweden, no. 38629/97, § 38, 12 November 2002).
58. Turning to the present case, the Court notes that no oral hearing was held at any stage of the proceedings. After several remittals by the Supreme Court, the Administrative Court was the first and only tribunal which examined the applicant’s case in the proceedings. Thus, she was in principle entitled to an oral hearing before the first and only tribunal examining her case unless there were exceptional circumstances which justified dispensing with such a hearing (see Koottummel v. Austria, no. 49616/06, §§ 18 and 19, 10 December 2009).
59. The Court will therefore need to examine whether there had been such exceptional circumstances in the present case. In this respect it observes that the final decision in the present case was taken by the Administrative Court, which had become competent to decide administrative disputes. This court dismissed the applicant’s claim finding that the applicant had gone for treatment abroad without having obtained a decision of the Fund and a medical report concerning the necessity of treatment abroad, which the court found to be in contravention of section 30 of the Health Insurance Act. It further found that, under the applicable domestic law, the expert medical report from the clinic (namely, the report of 12 July 1994) had been a proposal for referral for treatment abroad, which in the court’s view did not confer a right on the applicant to be treated abroad. The court accordingly concluded that the applicant’s treatment abroad could not be considered treatment abroad “based on a decision of the Fund”.
60. The Court notes, however, that in addition to this finding, the Administrative Court also examined the issue of the possibility for the applicant to be treated in the respondent State. In this respect, it found that the applicant had not obtained the right to be treated abroad because the Fund’s commission had stated that the applicant’s illness could have been treated in the respondent State (see paragraph 33 in fine). In the Court’s view, this finding concerns an issue of fact which was disputed between the parties.
61. In this connection, the Court further observes that throughout the impugned proceedings the Supreme Court (at the time when it was still competent to adjudicate the case) remitted the case on several occasions due to contradictory evidence as to whether the applicant’s condition could have been treated in the respondent State. It appears therefore that the Supreme Court considered that this particular issue was determinative for the applicant’s claim.
62. Finally, the Court notes that the applicant explicitly requested an oral hearing at which the court would examine witnesses (see, conversely, Döry, cited above, § 44). The Administrative Court, however, did not give any reasons why it considered that no hearing was necessary (see, mutatis mutandis, Alge v. Austria, no. 38185/97, § 30, 22 January 2004).
63. In view of the foregoing, the Court is not persuaded that there have been any exceptional circumstances to justify dispensing with an oral hearing. Accordingly, there has been a violation of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 OF THE CONVENTION
64. The applicant complained about the domestic authorities’ decision for partial reimbursement of the medical expenses, relying on Article 1 of Protocol No. 1 to the Convention, 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.”
A. The parties’ submissions
65. The Government submitted that the applicant had failed to observe the procedural requirements for exercising her right to treatment abroad and had not had a legitimate expectation of receiving full reimbursement. There was the possibility for her to initiate urgent proceedings for referral for treatment abroad (see paragraph 40 above) which she failed to avail herself of at the relevant time. The certificate allowing for the transfer of the money for the treatment abroad (see paragraph 7 above) did not create a legitimate expectation of having the expenses for that treatment reimbursed. Her hope that the proceedings for referral to treatment abroad could be conducted after her return to the State was also not sufficient to create a legitimate expectation.
66. The applicant argued that the fact that the Fund had reimbursed part of the expenses for the treatment abroad had proved that the medical treatment had not been available in the State and there had been a justified need for treatment abroad. The certificate allowing for the transfer of the money did create a legitimate expectation of reimbursement.
B. The Court’s assessment
67. The Court reiterates that “possessions”, which Article 1 of Protocol No. 1 protects, can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. It does not, however, guarantee the right to acquire property (see J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, § 61, ECHR 2007-III).
68. No legitimate expectation can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (see Kopeckỳ v. Slovakia [GC], no. 44912/98, § 50, ECHR 2004-IX; and Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 65, ECHR 2007-I).
69. The Court notes that the applicant lodged her claim for referral for treatment abroad after she had been treated abroad and had returned to the respondent State. The Administrative Court finally dismissed her claim for reimbursement of the total expenses for the treatment abroad, finding that the applicant had acted contrary to section 30 of the Health Insurance Act of 2000. Furthermore, she had not obtained the right to be treated abroad, given that, according to the Fund’s commission finding, the applicant’s condition was treatable in the respondent State.
70. The Court reiterates that given its supervisory power to review domestic courts’ interpretation of the domestic law it is primarily for the national courts to resolve problems of interpretation of domestic legislation, and the Court will not question their interpretation, save in the event of evident arbitrariness (see Stoilkovska v. the former Yugoslav Republic of Macedonia, no. 29784/07, § 41, 18 July 2013). The Court considers that there is nothing in the current case to lead it to conclude that the Administrative Court interpreted and applied the legal provision in question manifestly erroneously or so as to reach an arbitrary conclusion. There is, furthermore, no evidence before the Court to suggest that the Administrative Court’s reasoning contradicted settled case-law regarding the application of the relevant domestic legislation.
71. The Court accordingly finds that in the circumstances of the present case there is no “possession”. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
72. The applicant further complained under Article 6 that she was denied the opportunity to have knowledge of and to comment on all evidence adduced. Lastly, she complained under Article 14 of the Convention that she had been discriminated against on the basis of her health.
73. The Court has examined these complaints. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
74. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
75. 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.”
76. The applicant claimed 60,243.6 United States dollars (USD) in respect of pecuniary damage, reduced by the MKD 328,526 which she had been awarded domestically. She further claimed 5,000 euros (EUR) in respect of non-pecuniary damage suffered due to the alleged violations of her rights under Article 6 and an additional EUR 2,000 for the alleged violation of Article 1 of Protocol No.1.
77. The Government contested these claims as excessive and unsubstantiated.
78. The Court does not discern any causal link between the violation found and the pecuniary damage claimed; it therefore rejects this claim. On the other hand, it considers that the applicant herself must have sustained non-pecuniary damage for the violation of her rights under Article 6 of the Convention. Ruling on equitable basis, it awards her EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
79. The applicant also claimed EUR 1,358 for the costs and expenses incurred before the Court, namely fees for her legal representation, calculated under the tariff list of the Macedonian Bar. In support, the applicant submitted a copy of a decision enlisting her representatives as taxpayers.
80. The Government contested that claim as excessive and unsubstantiated.
81. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as they relate to the violation found and in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award EUR 850 for the proceedings before the Court, plus any tax that may be chargeable to the applicant.
C. Default interest
82. The Court considers it appropriate that the default interest rate 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,
1. Declares the complaints concerning the lack of an oral hearing before the Administrative Court and the length of the administrative proceedings admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 of the Convention as regards the length of the proceedings;
3. Holds that there has been a violation of Article 6 of the Convention on account of the lack of an oral hearing;
(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, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 5,000 (five thousand), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 850 (eight hundred and fifty 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;
5. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 15 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sřren Nielsen András Sajó