Communicated on 23 September 2016

THIRD SECTION

Application no. 55631/12 ALMEDI A SPOL. S R.O . against Slovakia lodged on 22 August 2012

STATEMENT OF FACTS

1. The applicant, ALMEDI A spol . s r.o ., is a private limited company which was established under Slovakian law in 1992 and has its registered office in Trebišov . It is represented before the Court by Mr J. Brázdil , a lawyer practising in Zvolen .

The circumstances of the case

2. The background to this case is described in Slivková v. Slovaki a (( dec. ), no. 32872/03, 14 December 2004). The facts, as submitted by the applicant, may be summarised as follows.

1. Proceedings and decisions giving rise to the present application

3. On 8 January 2009 the applicant company applied for enforcement against the State ‑ owned General Health Insurer (“GHI”) of an order issued by the Bratislav a III District Court on 20 August 1999 to a private health insurer (“the original debtor”) for payment to the applicant company of a principal amount equivalent to some 3,450 euros (EUR) with additional amounts.

4. In subsequent submissions in the proceedings the applicant company explained ( i ) that the original debtor had been wound up, (ii) that its ensuing liquidation had been stayed by operation of law as a result of an insolvency order against it, (iii) that the insolvency proceedings had been terminated because there had not been enough assets to pay the costs of the proceedings, (iv) that the original debtor had consequently been struck off the companies ’ register and had thereby legally seized to exist, (v) that the original debtor ’ s insurance policies had been assigned to the GHI, (vi) that in the circumstances, the original debtor ’ s outstanding liabilities had also been assumed by the GHI, and (vii) that the application for enforcement had been directed against the GHI accordingly. In support of those arguments, the applicant company relied on the provisions of section 34 of the Health Insurance Act (Law no. 273/1994 Coll., as amended by Law no. 233/2001 Coll.).

5. On 11 March 2010 the Bratislav a V District Court upheld an objection to the enforcement lodged by the GHI, which effectively meant that no enforcement could be carried out against it.

The court held that for the enforcement to be permissible against the GHI, it was incumbent on the applicant company to show that the order in its favour against the original debtor had passed on to the GHI. In order to do so, it was not sufficient – as the applicant company had done – to merely refer to the relevant statutory provisions. In particular, it was necessary for it to show that the debt had not been settled in the course of the original debtor ’ s liquidation. By failing to do so, the applicant company had failed to establish that the GHI had locus standi to answer the enforcement application.

6. The applicant company challenged the decision of 11 March 2010 by way of an appeal to the Bratislav a Regional Court. In addition to its previous arguments, it submitted that the original debtor had been wound up and its liquidator had been appointed by and was answerable to the Ministry of Health. Moreover, the Ministry was the sole shareholder of the GHI, and in the circumstances, it was illogical to r equire the applicant company to show that the defendant had failed to fulfil its duties. By contrast, the GHI could not argue that it was unaware of the liabilities it had assumed from the original debtor as it kept them in separate records.

7. On 20 September 2011 the Regional Court upheld the challenged decision. It held ( i ) that the GHI was not the original debtor ’ s universal legal successor; (ii) that it was up to the applicant company to unequivocally show that the GHI was liable to settle the debt in question, and (iii) that that was to be done by submitting documentary evidence, which the applicant company had failed to do.

8. The applicant company challenged the decisions of 11 March 2010 and 20 September 2011 by way of a complaint under Article 127 of the Constitution, alleging a violation of its rights of access to court and to protection of property.

Relying in particular on a Supreme Court ruling of 30 June 2004 (no. Obdo V 6/2003), it argued that the case involved a sui generis form of universal succession, consisting of a transfer of rights and obligations to the GHI by operation of law at various times. With respect to the outstanding liabilities towards healthcare establishments, these were transferred to the GHI if and when they could not be settled from the original debtor ’ s assets. In the present case, that condition had been fulfilled when the original debtor ’ s liquidation had been stayed owing to the insolvency order against it and when the insolvency proceedings had been terminated for lack of assets. Those facts had been uncontested and, in correlation with the said sui generis succession, they amounted to an automatic transfer of the original debtor ’ s debt to the GHI without the need for any further substantiation.

The applicant company also argued that it had been wrongful and disproportionate to place a burden on it to prove that the debtor had not settled the applicant company ’ s debt. Firstly, the non-existence of a fact was generally not susceptible of being proven and secondly, the applicant company, along with numerous other creditors in a similar position, had no access to documentation concerning the settlement of the original debtor ’ s liabilities by the GHI.

In sum, the ordinary courts ’ decisions had been arbitrary and had deprived the applicant company of any possibility of having the order in the property claim enforced.

9. On 14 February 2012 the Constitutional Court declared the complaint inadmissible. In so far as it concerned the District Court, the applicant company ’ s claims fell to be determined by the Regional Court, which excluded the Constitutional Court ’ s jurisdiction under the principle of subsidiarity.

As for the Regional Court, the Constitutional Court considered that there was no indication of a violation of the applicant company ’ s procedural rights. As regards its property claim, it reiterated its established case-law, under which a general court could not bear “secondary liability” for a violation of fundamental rights and freedoms of a substantive nature unless there had been a constitutionally relevant violation of the rules of procedure. As no such procedural issues had been established, the property claim was manifestly ill-founded.

The decision was served on the applicant company on 12 March 2012 and was not amenable to appeal.

2. Position taken by courts in another similar case involving the applicant

10. In a judgment dated 31 March 2014 the Regional Court dismissed an objection by the GHI to the applicant company ’ s application for enforcement of an order to the original debtor for payment of some EUR 2,300 with additional amounts in circumstances similar to those described above. It held, inter alia , that there could be no doubt that the GHI was the original debtor ’ s legal successor and that the only outstanding question was when the original debtor ’ s liabilities had been transferred to the GHI.

The Regional Court pointed out that, in law, that was when it was not possible to settle the wound-up health insurer ’ s liabilities from its assets. Based on the facts of the case, that had been on 5 April 2007 when the decision of an Insolvency Court of 14 December 2006 – stating that the insolvency proceedings in respect of the original debtor would be terminated because its insolvency estate was insufficient to cover the costs of the proceedings – had become final and binding.

COMPLAINTS

11. Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicant company complains that the proceedings in its enforcement application were unfair and that their outcome was arbitrary, in violation of its rights of access to court and to peaceful enjoyment of its possessions.

In particular, the applicant company submits that, as regards the question of the transfer of the original debtor ’ s liabilities to the GHI, the courts erred both in law and fact, arbitrarily reversed the burden of proof to its disadvantage, and thereby frustrated its legitimate expectation of having its debt satisfied. In addition, it contends that the courts limited themselves to questions of lawfulness and procedural fairness but omitted to entertain the question of its property rights per se .

QUESTIONS TO THE PARTIES

1. Did the applicant company ’ s entitlement to payment under the order of 20 August 1999 amount to a “possession”, within the meaning of Article 1 of Protocol No. 1? In particular, did the applicant company have a “legitimate expectation”, within the meaning of the Court ’ s case-law under Article 1 of Protocol No. 1, of having it enforced?

2. If so, did the upholding of the General Health Insurer ’ s objection against the enforcement of that order amount to an interference with the applicant company ’ s rights under Article 1 of Protocol No. 1, and was it compatible with the guarantees laid down in that Article?

3. In the enforcement proceedings, d id the applicant company have a fair hearing in the determination of its civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was its right of access to court respected?