THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33078/06 by Pavel Å IMKO against Slovakia

The European Court of Human Rights (Third Section), sitting on 7 June 2011 as a Chamber composed of:

Josep Casadevall , President, Corneliu Bîrsan , Egbert Myjer , Ján Šikuta , Ineta Ziemele , Nona Tsotsoria , Kristina Pardalos , judges, and Marialena Tsirli , Deputy Section Registrar ,

Having regard to the above application lodged on 1 August 2006,

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, Mr Pavel Å imko, is a Slovak national who was born in 1956 and lives in Poprad . He was represented before the Court by Mr A. Graban, a lawyer practising in Ko Å¡ ice.

2 . The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Piro šíková .

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Contractual relationship , ownership and administration of the debtor, and court action

3 . In 1997 the applicant, who is a pharmacist, entered into a contract for the supply of drugs and medical equipment with a hospital, which at that time was owned by and responsible to the State. The contract was extended in 1998 and again in 2000 and remained in place until 31 May 2003.

4 . In about mid-1998 the hospital ceased paying the applicant, with the consequence that the applicant became unable to pay his sub-contractors and thus incurred late-payment penalties, lost business and sustained damage to his goodwill. The applicant eventually became insolvent and went out of business.

5 . Meanwhile the ownership and administration of the hospital had gone through a restructuring, in the course of which, on 1 January 2002, the hospital was transferred from the State ’ s administration to that of a municipality by the operation of Law no. 416/2001 Coll.

6 . On 1 January 2004 the ownership of the assets of the hospital was transferred to the municipality by the operation of Law no. 522/2003 Coll. Due and unpaid debts and liabilities, however, remained with the hospital.

7 . Later in 2004 the municipality established a non-profit organisation which took ownership of the hospital ’ s assets.

8 . The applicant asserted his property claims originating in the contract mentioned above by means of civil actions against the hospital and the municipality. This gave rise to a number of civil proceedings, some twenty of which are still pending before the Kežmarok District Court ( Okresn ý súd ).

9 . The applicant was successful in obtaining a number of judicial orders for payment in his favour, including a payment order ( platobný rozkaz ) issued by the District Court on 4 February 2002 against the hospital for the payment of the equivalent of some 25,000 euros (EUR).

2. Enforcement

10 . On the basis of the judicial orders for payment in favour of the applicant, between 2003 and 2009 the applicant initiated fourteen sets of enforcement proceedings under the Executions Order of 1995 (Law no. 233/1995, as amended). Three of these enforcement actions were terminated upon the applicant ’ s request. Nine sets of proceedings resulted in a successful recovery of the adjudicated claims. One action is still pending because the underlying civil proceedings are still pending.

11 . On 12 September 2007 the District Court declared the enforcement of the above-mentioned payment order of 4 February 2002 against the hospital improper ( neprípustná ) and terminated the proceedings. It observed that the applicant had petitioned for the enforcement on 6 March 2003, that pursuant to Law no. 416/2001 Coll. the hospital had been transferred from the State ’ s administration to that of a municipality , that by virtue of section 4a(2)(a) of the Municipal Property Act (Law no. 138/1991 Coll., as amended by Law no. 447/2001 Coll.) the hospital ’ s liabilities had not been transferred to the municipality and that, on 31 January 2005, the hospital had been wound up. In relation to the claim in question, the hospital had been wound up without a legal successor. No enforcement could accordingly have been directed against it.

12 . The above decision could have been challenged by way of an appeal but no appeal was filed by the applicant. It thus became final and binding on 5 October 2007.

13 . The applicant requested that the Prosecutor General challenge the legislation concerning the transfer to municipalities of assets without a corresponding transfer of liabilities in the Constitutional Court .

14 . By letter of 14 December 2007 the Prosecutor General informed the applicant that liabilities which had not been transferred to the municipalities had not been left unassigned but, by operation of section 55d(6) of the Budgetary Rules Act (Law no. 303/1995 Coll., as amended), remained with the government department originally responsible for overseeing the now restructured entity. In the case of the applicant ’ s contractual partner, the hospital, such unsettled liabilities remained with the Ministry of Health (“the Ministry”).

B. Relevant domestic law

1. Constitution

15 . 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

16 . 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 has also varied over time.

17 . The bar has its origin in Article 235 of the Enforcement Code of 1995 (Law no. 233/1995 Coll., as amended), 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.

18 . 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.

19 . 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.

20 . On 15 June 2004 a new bar entered into force by virtue of an amendment (Law no. 345/2004 Coll.) t o 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.

21 . 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.

22 . The bar was most recently extended until 31 December 2009 by the operation of Law no. 192/2009 Coll., whic h introduced a new section 102c § 2 to the Health Care Providers Act (Law no. 578/2004 Coll., as amended).

23 . On 31 December 2009 the bar expired and has ceased to exist with effect from 1 January 2010 onwards.

3. Municipal Property Act

24 . The Municipal Property Act (Law no. 138/1991 Coll.) has been amended numerous times. Amending Law no. 447/2001 Coll. entered into force on 1 January 2002 and introduced new sections 4a(2)(a) and 4b(2)(a), pursuant to which a municipality does not take over liabilities for the supply of goods, works and other contractual performance which have been assumed by the administrator of State property in connection with different types of property transferred to the ownership of the municipality and which liabilities are due or were not settled on the day of the transfer of the property from the State to the municipality.

4. Budgetary Rules Act

25 . Under section 55d(6) of the Budgetary Rules Act (Law no. 303/1995 Coll., as in force since 1 January 2005), liabilities of the State which have not been transferred to a municipality or a self-governing region together with a transfer of functions of attributable to a government department and the right of ownership of related assets remain liabilities of the government department or the body that exercised the functions of the government department.

26 . Section 55g(6) provides that liabilities of the State which are not transferred to a municipality or a self-governing region together with a transfer of functions attributable to a government department on 1 January 2004 remain liabilities of the central government body responsible for the area in which the functions are transferred to the municipality or the self ‑ governing region.

5. Enforcement Code

27 . Article 37 of the Enforcement Code provides for the possibility of carrying out enforcement proceedings against a different person than the debtor identified in the enforceable decision. Such enforcement is possible if it is established that the adjudicated liability has been transferred to such a different person. It is the responsibility of the parties to the enforcement proceedings to notify the enforcement officer of any such transfer.

COMPLAINTS

28 . The applicant complained under Article s 1 of Protocol No. 1 to the Convention and under Articles 13 and 14 of the Convention that the legislative measures and their implementation concerning the bar to enforcement against the hospital and the ownership and administrative restructuring of the hospital had resulted in an arbitrary and discriminatory deprivation of any possibility of seeking the enforcement of his adjudicated claims against the hospital and, thereby, effectively of his possessions.

THE LAW

29 . The applicant complained that due to the above-mentioned legislative measures and their implementation it had been impossible for him to obtain enforcement of claims adjudicated in his favour. He relied on Article 1 of Protocol No. 1 to the Convention, which provides that:

“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 . In addition, the applicant relied on Article 13 of the Convention, which provides that:

“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 applicant further relied on Article 14 of the Convention, which reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

32 . The Government pointed out that most of the applicant ’ s adjudicated claims had been settled by way of enforcement, that the enforcement of some of them had been terminated at the applicant ’ s own request and that the remaining claims were pending.

33 . As to the applicant ’ s claim based on the payment order of 4 February 2002, the Government relied on the position taken by the Prosecutor General in his letter of 14 December 2007 to the effect that liability for the settlement of that claim lay with the Ministry. The applicant, however, had failed to amend the claim for enforcement in order to direct it against the Ministry under Article 37 of the Enforcement Code and to challenge the decision of 12 September 2007 to terminate the enforcement by way of an appeal.

34 . The Government concluded that the complaints under Article 1 of Protocol No. 1 to the Convention and Article 14 of the Convention were incompatible ratione materiae with the Convention and that no issue arose under Article 13 of the Convention.

35 . In reply, the applicant did not contest the Government ’ s argument that it had been possible under Article 37 of the Enforcement Code for him to amend the claim for enforcement of the payment order of 4 February 2002 so that it was directed against the Ministry. He emphasised, however, that the essential aspect of his complaint was that upon the transfer of the assets of the hospital to the municipality, by operation of the statutory bar on enforcement, it had become impossible to seek enforcement of adjudicated claims, which was contrary to Article 13 of the Convention. By the contested measures, the State had placed itself above the law with the excuse of protecting the rights of patients but the actual effect of harming them by depriving them of a supplier of drugs and medical equipment .

36 . 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 or she alleges. That Article does not provide individuals with 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 or her rights under the Convention; it is necessary that the law should have been applied to his or her detriment (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).

37 . The present case therefore has to be examined with reference to the applicant ’ s specific situation and the concrete repercussions of the impugned legislative measures and their implementation on the applicant.

38 . With that aim in mind, the Court observes that, but for one exception, the applicant ’ s enforcement claims either resulted in settlement of his claims or in the discontinuation of the proceedings upon his request, which may presumably be due to extrajudicial settlement of his claims. The Court also observes that the remaining claims are still pending before the courts.

39 . Therefore, the sole issue that remains open to the Court ’ s examination is the failure to enforce the payment order of 4 February 2002 . The Court observes that, in fact, this issue was central to the present application as originally submitted, the other court and enforcement proceedings being brought to the Court ’ s attention merely by way of background by the Government in their observations.

40 . The Court accepts that the applicant ’ s claim adjudicated under the payment order of 4 February 2002 constituted “possessions” within the meaning of Article 1 of Protocol No. 1, which consequently applies.

41 . The Court observes that the enforcement of that order was declared improper in relation to the debtor specified in the order, that is to say the hospital, and that the proceedings were consequently terminated on 12 September 2007 .

42 . The Court also observes that, in theory, the decision to terminate the enforcement was subject to appeal and, eventually, a compliant under Article 127 of the Constitution to the Constitutional Court ( Ústavný súd ) .

43 . The Court considers that, in these circumstances, it is necessary to examine whether these remedies offered the applicant any reasonable prospects of success and whether, consequently, he can be considered as having complied with the requirement of Article 35 § 1 of the Convention to exhaust domestic remedies.

44 . To that end, the Court notes the position taken by the Prosecutor General in his letter of 14 December 2007 , which has not been disputed by the applicant, that upon the restructuring of the administration and ownership of the original debtor, the hospital, liability for the settlement of the applicant ’ s claim under the payment order of 4 February 2002 rested with the Ministry. It has equally not been disputed by the applicant that it was possible for him, under Article 37 of the Enforcement Code, to amend the claim for enforcement so that it was directed against the Ministry. Finally, there appear to be no reasons why it should not still be possible for the applicant to pursue his claim under the payment order of 4 February 2002 against the Ministry extra- judicially or, if need be, by a fresh petition for its enforcement.

45 . The Court considers that, in these circumstances, the applicant ’ s complaints under Articles 1 of Protocol No. 1 and 14 of the Convention must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non ‑ exhaustion of domestic remedies and that his complaint under Article 13 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Marialena Tsirli Josep Casadevall              Deputy Registrar President