CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 21 juin 2011

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sA5E34492 { width:18.86pt; display:inline-block } .sB2998F02 { width:154.72pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } THIRD SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 27450/05 by AGENTÚRA HARMONY V.O.S. against Slovakia The European Court of Human Rights (Third Section), sitting on 21   June   2011 as a Chamber composed of:   Josep Casadevall, President,   Corneliu Bîrsan,   Egbert Myjer,   Ján Šikuta,   Ineta Ziemele,   Nona Tsotsoria,   Kristina Pardalos, judges, and Santiago Quesada, Section Registrar, Having regard to the above application lodged on 15 July 2005, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Agentúra HARMONY v.o.s., is an unlimited liability company established under the laws of Slovakia with its head office in Nitra. It was represented before the Court by Ms G. Strýčeková, a lawyer practising in Nitra. 2.     The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     Contractual relationship and court action 3.     The applicant company supplied medical equipment to a hospital, which at that time was owned by and under the responsibility of the State. 4.     The power of administration over the hospital and its ownership were later transferred by law (Law no. 446/2001 Coll.) to the self-governing region ( samosprávny kraj ) where the hospital is situated. 5.     The hospital owned premises not used for its main function, which it let to third parties. 6.     In about mid-2002 the hospital ceased paying the applicant, and later acknowledged its debt to the applicant in an amount equivalent to some 5,000 euros (EUR). 7.     On 26 September 2003 the applicant company sued the hospital for payment of the above-mentioned amount. 8.     On 21 January 2004 the Šaľa District Court ( Okresný súd ) allowed the action and, on 31 March 2004, the Nitra Regional Court ( Krajský súd ) upheld the District Court’s judgment following an appeal by the defendant. The judgment became final and binding on 29 April 2004. 2.     Enforcement and constitutional complaint 9.     On 7 May 2004 the applicant company applied for enforcement of the judgment under the Enforcement Code of 1995 (Law no. 233/1995 Coll., as   amended). 10.     In September 2004 the judicial enforcement officer ( exekútor ) decided that the enforcement should be carried out by means of attaching the rent collected by the hospital from the letting of the above-mentioned premises. 11.     On 5 October 2004, by a decision of its council, the ownership of and power of administration over the hospital was taken over by the self ‑ governing region, which also assumed the role of landlord in respect of those premises. 12.     On 20 April 2005 the Constitutional Court ( Ústavný súd ) declared inadmissible a complaint made by the applicant company under Article 127 of the Constitution contesting the council’s decision of 5 October 2004 on the grounds that it had violated, inter alia , the applicant company’s right of access to court and to equal treatment in proceedings. 13.     The Constitutional Court found that there was no indication of an   interference with the applicant’s procedural rights and that the complaint was manifestly ill-founded. 14.     By letter of 30 May 2005 the judicial enforcement officer informed the applicant company that the total amount of principal debt plus interest accrued for late payment and costs incurred totalled, at that time, the equivalent of some EUR 7,100, of which the equivalent of some EUR 875 had already been obtained from the defendant. 15.     The judicial enforcement officer also informed the applicant company that the council’s decision of 5 October 2004 had made it impossible to   continue attaching the rent pertaining to the premises in question, as these were no longer owned and let by the debtor. 16.     The judicial enforcement officer further informed the applicant company that using other means of enforcement was not possible due to a   temporary immunity from the enforcement of financial claims enjoyed by the hospital under Article 54a § 2 of the Health Insurance Code (Law   no.   273/1994 Coll., as amended) and Section 102a of the Health Care Act (Law   no. 578/2004 Coll., as amended). 17.     On 26 September 2005, by a decision of its council, the self ‑ governing region decided to merge hospitals under its administration into a new entity, an agency named the Obligations and Claims Administration ( Správa záväzkov a pohľadávok – “the OCA”), with effect from 30   November 2005. The OCA was the legal successor to the hospital in question, and its purpose was to settle obligations and claims related to the functioning of the hospitals in the region. The OCA did not have the status of a health-care establishment and thus did not benefit from the bar to enforcement of claims against such establishments. 18.     By letter of 26 January 2009 the enforcement office notified the applicant that the enforcement had been terminated as, on 22 December 2008, the applicant’s entire claim had been settled by the OCA. The   applicant company’s legal costs and penalty interest for the debtor’s late payment of the principal debt had also been paid. B.     Relevant domestic law 1.     Constitution 19.     Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) provides: “1.     The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2.     If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash such decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order such authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation. 3.     In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to the person whose rights under paragraph 1 have been violated.” 2.     Statutory bar to enforcement 20.     The statutory bar to the enforcement of financial claims against health ‑ care establishments was laid down in different pieces of legislation and its duration, always intended to be temporary, was extended several times. The precise scope of the bar also varied over time. 21.     The bar had its origin in Article 235 of the Enforcement Code of 1995, such Article being incorporated into the code by Law no. 280/1999 Coll. The bar was, in this implementation, intended to last until 31   December 2001. 22.     Article 235 of the amended Enforcement Code of 1995 was repealed by the Constitutional Court by virtue of its judgment of 15 November 2000 (published in the Collection of Laws under no. 415/2000) with effect from 6   December 2000. The Constitutional Court found the bar unconstitutional because it created an unjustified difference between the treatment of health ‑ care establishments and other debtors. 23.     With effect from 1 January 2003, a new statutory bar to enforcement of financial claims against health-care establishments was introduced into the Health Insurance Code by the operation of Law no. 671/2002 Coll. In   particular, enforcement was not permissible against the financial assets and income of health-care establishments in so far as such monies were allocated for providing and maintaining health care and related services, nor against assets belonging to health-care establishments which were purchased out of funds deriving from the insurance premiums paid by the establishment’s users and which were indispensable for the running and maintenance of the establishment. 24.     On 15 June 2004 a new bar entered into force by virtue of an   amendment (Law no. 345/2004 Coll.) to the Health Insurance Code. It   introduced a new section 54a to the code, stated to apply until 31   December   2004. Under sub-section 2 (d) of that provision, enforcement could not be   aimed at attaching the property of health-care establishments obtained via insurance premiums or property to be used for providing health care. 25.     In 2006 a new constitutional challenge to the bar, as it then stood, was brought by a group of Members of Parliament. It was accepted by the Constitutional Court to the extent that, in its ruling of 6 December 2006 (published in the Collection of Laws under no. 18/2007), it suspended the legal effect of the bar. However, the Constitutional Court has never ruled on the merits of the bar, as it expired while the constitutional challenge was pending. In its decision of 30 April 2008 the Constitutional Court nevertheless made a formal note of its 2000 ruling, considering it a part of its case-law. 26.     The bar was extended for the last time until 31 December 2009 by the operation of Law no. 192/2009 Coll., which introduced a new section 102c § 2 to the Health Care Providers Act (Law no. 578/2004 Coll., as amended). On 31 December 2009 the bar expired and has ceased to exist with effect from 1 January 2010 onwards. COMPLAINTS 27.     The applicant company complained under Article 1 of Protocol No.   1 to the Convention and under Article 13 of the Convention that, due to the legislative measures and their implementation at the level of the self ‑ governing region as described above, it had been impossible to have its adjudicated claim enforced and that there had been no remedy available in that respect. THE LAW 28.     The applicant company complained of the above-mentioned legislative measures and their implementation, asserting that they had made it impossible to have its adjudicated claim enforced and had left it without any effective remedy in that respect. 29.     The applicant company relied, firstly, on Article 1 of Protocol No. 1 to the Convention, which provides 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.” 30.     Secondly, the applicant company relied upon Article 13 of the Convention, which has the following wording: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 31.     The Government objected, first of all, that the applicant company had failed to exhaust domestic remedies, as required under Article 35 § 1 of the Convention. To that end, the Government pointed out that, in its complaint under Article 127 of the Constitution, the applicant company had merely asserted its right of access to court rather than its property rights. 32.     The Government also objected that the applicant company had lost its status as a   victim within the meaning of Article 34 of the Convention as a   result of the complete settlement of its claim. 33.     On the merits, the Government submitted that the statutory bar to enforcement of claims against health-care establishments was in the public interest of ensuring the availability of health-care services and pursued a   legitimate aim of ensuring their continuity. Furthermore, the bar was proportionate in that it was temporary, lasting until 31 December 2009. It   therefore did not constitute an   excessive individual burden imposed on the applicant company. 34.     As to the Article 13 complaint, the Government referred to their argument concerning non-exhaustion of domestic remedies and considered that, accordingly, the complaint was manifestly ill-founded. 35.     In reply to the Government’s objection of non-exhaustion of domestic remedies, the applicant company submitted that the reasons for which the Constitutional Court had rejected its constitutional complaint, while being unacceptable, would have equally applied to the property aspect of the case. 36.     The applicant company acknowledged that its claim had eventually been settled. Nevertheless, it considered that such settlement did not constitute adequate redress for the alleged violations of its rights and that such settlement had accordingly not deprived the applicant company of the status of a victim of a   violation of those rights. 37.     As to the merits, the applicant company submitted that there had been an   interference with its possessions, which had consisted of an   adjudicated claim, and that this interference had neither been necessary nor had been in the public interest. 38.     In particular, the applicant company contended that there could not have been any public interest in preventing it, by the transfer of the administration and property of the hospital to the self-governing region, from enforcing its adjudicated claim. 39.     Moreover, the applicant company emphasised that it had been completely deprived of any possibility of obtaining enforcement of its adjudicated claim. In that context, the applicant company argued that enforcement of an adjudicated claim fell within the notion of the right of   access to court and was an integral part of it. This right of the applicant company had been interfered with in a discriminatory fashion. 40.     Lastly, the applicant company submitted that, contrary to the Government’s proposition, it remained impossible to the present day to   enforce adjudicated claims against pubic bodies by attaching the property in their trust or under their administration as long as that property was considered to belong to the State. 41.     The Court observes at the outset that, from its initiation, the present application has been presented as primarily concerning the applicant company’s property rights and, in particular, the impact on its peaceful enjoyment of such rights of the statutory bar to enforcement. 42.     The Court further observes that the applicant company’s property rights do not appear to   have been asserted by the applicant company before the Constitutional Court in the framework of its complaint under Article 127 of the Constitution. It is therefore questionable whether, in such circumstances, the applicant company can be considered as having complied with the requirement of exhaustion of domestic remedies under Article   35   §   1 of the Convention. However, the Court considers that it is not required to   rule separately on this issue as the application is in any event inadmissible for the following reasons. 43.     The Court reiterates that in order to be able to lodge an   application in pursuance of Article 34, a person, non-governmental organisation or group of individuals must be able to claim “to be the victim of a violation ... of the rights set forth in the Convention ...”. In order to claim to be a victim of a   violation, a person must be directly affected by the impugned measure (see, for example, Micallef v. Malta [GC], no. 17056/06, § 44, ECHR   2009 ‑ ...). 44.     The Court also reiterates that in proceedings originating in an   application lodged under Article 34 of the Convention it has to confine itself, as far as possible, to the examination of a concrete case before it. Its   task is not to review domestic law and practice in abstracto , but to   determine whether the manner in which they were applied to or affected the applicant gave rise to a violation of the Convention. That Article accordingly does not provide individuals with an action in the nature of an actio popularis (see, for example, Klass and Others v. Germany , 6   September 1978, § 33, Series A no. 28, and Slivková v. Slovakia (dec.), no. 32872/03, 14 December 2004). 45.     The Court will therefore examine the present case with reference to the applicant company’s specific situation and the concrete repercussions of the impugned legislative measures and their implementation on the applicant company. 46.     To that end, the Court observes that the applicant company, a   corporate entity, engaged in the business of supplying medical equipment to a public hospital (see paragraph 3 above) and that, on 29   April 2004, it   was successful in obtaining an   enforceable judgment against its contractual partner, the hospital, for payment for the equipment supplied (see paragraph 8 above). However, on 5 October 2004, the self-governing region in charge of the hospital took a step that resulted in preventing the applicant company temporarily from enforcing its claim (see paragraphs 11 above). 47.     This being so, on 26 September 2005, the self-governing region took a step with a view to settling claims concerning the hospital (see paragraph 17 above), which ultimately resulted in settlement of the applicant company’s claim on 22 December 2008 (see paragraph 18 above). 48.     In this context, the Court observes in particular that the applicant company’s claim was settled completely, that is to say including its principal amount, legal costs and penalty interest (see paragraph 18 above). Should the applicant company have sustained damage or any other loss in consequence of the delayed settlement of its claim, there is no indication that it was unable to seek compensation from the OCA, being the legal successor to the applicant company’s contractual partner, the hospital. 49.     In the light of the above-mentioned considerations, and in the absence of any specific argument on the part of the applicant company to the contrary (see paragraph 36 above), the Court concludes that applicant company’s proprietary claim, which lies at the hart of the present application, was fully satisfied. Moreover, in so far as the application has been substantiated, there is no indication that the applicant company has suffered any other loss. 50.     Therefore, to the extent the applicant company’s rights under Article   1 of Protocol No. 1 were directly concerned by the impugned measures, the applicant company can no longer claim to be a victim within the meaning of Article 34 of the Convention of a violation of those rights. 51.     Consequently, the applicant company’s claim under that provision cannot be considered arguable for the purposes of Article 13 of the Convention (see Boyle and Rice v. the United Kingdom , 27 April 1988, §   52, Series A no. 131). The complaint under the latter provision is therefore manifestly ill-founded and the whole application must be rejected in accordance with Article 35 §§   3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Santiago Quesada   Josep Casadevall   Registrar   President