Published on 20 June 2022

FIRST SECTION

Application no. 1400/22 Anita STOPAR against Slovenia lodged on 20 December 2021 communicated on 30 May 2022

SUBJECT MATTER OF THE CASE

The application concerns the reimbursement of costs for the medical treatment of the applicant in the United States of America. The applicant, who was a minor at the time of the treatment, was – pursuant to the decision of 17 April 2014 issued by the Slovenian Health Insurance Institute (the Institute) – entitled to undergo a selective dorsal rhizotomy procedure in a specific hospital in Missouri and to have such procedure as well as associated costs paid by the Institute. Due to delays in the Institute’s procedure for the payment for the treatment and associated costs, the applicant’s parents started to collect funds via a charitable organisation (donations were paid by the applicant’s relatives and friends as well as by local businesses and general public). As no decision on costs had been issued by the Institute by August 2014, the aforementioned charitable organisation paid for the treatment from the funds collected for this purpose. The surgery took place in October 2014. The applicant’s subsequent request for reimbursement of costs in the amount of approximately 16,000 euros was rejected by the Institute on the grounds that it was not the applicant but the charitable organisation who had paid for the treatment. The applicant challenged that decision before the Labour and Social Court in Ljubljana. The latter and the Higher Labour and Social Court decided in favour of the applicant, taking the position that the right to have the costs in question reimbursed had stemmed from her health insurance and the corresponding obligation of the Institute to reimburse such costs had not ceased to exist just because they had been paid in advance by someone else, not the applicant. On 2 February 2021 the Supreme Court quashed the lower courts’ decisions. It, like the lower courts, relied on section 44.a of the Health Care and Health Insurance Act. The latter provided, inter alia , that in the case of the approved medical treatment abroad, the Institute should reimburse the insured person the sum corresponding to the actual expenses of the medical services in the country concerned ( v višini dejanskih stroškov teh storitev v državi ). However, the Supreme Court considered that in the applicant’s case no actual costs had been incurred because the charitable organisation had covered them and that therefore she was not entitled to the reimbursement. The Constitutional Court decide not to accept the applicant’s constitutional complaint for consideration.

The applicant complains under Article 6 § 1 of the Convention that the Supreme Court decided arbitrarily – their finding having no basis in the applicable legislation – and without giving any consideration to the argument that the founds collected by the charitable organisation had been donated to the applicant. Furthermore, she complains under Article 1 of Protocol No. 1 in conjunction with Article 14 that the Supreme Court’s decision amounted to an unreasonable interpretation of the relevant legislation as a result of which she was unable to receive the reimbursement of medical costs based on her health insurance, just because she had been unable to make an advance payment herself. She alleges that she was discriminated against on the basis of her economic situation.

QUESTIONS TO THE PARTIES

1. Was there an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? If so, was this interference justified? Did it meet the requirement of lawfulness, including the requirement that the applicable legal norms should be sufficiently precise and foreseeable (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, §§ 141-142, ECHR 2012)?

In this connection, the Government are invited to provide any previous domestic jurisprudence concerning the reimbursement of costs of treatment by the Institute in the cases where the funds for the advance payment had been collected with the assistance of a charitable organisation.

The Government are also invited to explain why the advance payment for the applicant’s treatment was not provided by the Institute.

Moreover, they are invited to explain, by referring to the relevant domestic law and practice, whether the Institute was under the obligation to reimburse the costs of treatment abroad when such costs were paid by the patient’s relatives directly or by the patient after collecting donations without an assistance of a charitable organisation? If so, what would be the relevant legal grounds for the distinction between the aforementioned situations and the situation of the applicant?

2. Has the applicant suffered discrimination in the enjoyment of her right guaranteed by Article 1 of Protocol No. 1, contrary to Article 14 of the Convention, based on her economic situation?

3. Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention?