Published on 13 June 2022

FIRST SECTION

Applications nos. 18047/22 and 18056/22 Nejc KOTAR against Slovenia lodged on 4 April 2022 communicated on 25 May 2022

SUBJECT MATTER OF THE CASE

The applications concern the reimbursement of costs for the medical treatment of the applicant in the United States of America (the USA). The applicant, who is a minor, was – pursuant to the decision of 18 June 2014 issued by the Slovenian Health Insurance Institute (the Institute) – entitled to undergo a selective dorsal rhizotomy procedure in a specific hospital in the USA and to have such procedure as well as associated costs paid by the Institute. Subsequently, the Institute also authorised the applicant to undergo an additional orthopaedic surgery in that hospital.

Since the costs of the treatment had to be paid in advance, the applicant’s parents collected the funds with the help of a charitable organisation which opened a separate bank account for him. The organisation then paid for the treatment from that account. The applicant underwent the two medical procedures in the USA in November and December 2014.

Application no. 18056/22 concerns the proceedings before the Institute in which the applicant claimed the reimbursement of the costs paid for the treatment. After paying the applicant a part of the requested sum (approximately 34,000 euros (EUR)), the Institute refused his request for the reimbursement, noting that the invoice for the two medical procedures in the amount of approximately EUR 33,000 had been paid by the aforementioned charitable organisation. It also refused to reimburse his flight tickets noting that he had bought them with the money he had received from that organisation. The applicant was requested to return the sum of approximately EUR 34,000 which the Institute had previously transferred to him. 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 the applicant’s 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 other than 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 the applicant would be entitled to the reimbursement of the costs only if their payment had resulted in the reduction of his assets. It rejected the applicant’s claim finding that the reimbursement by the Institute would have resulted in him being paid the costs twice.

Application no. 18047/22 concerns the proceedings the Institute brought against the applicant in order to claim back the money it had “erroneously” transferred to him. The Labour and Social Court and, on appeal, the Higher Labour and Social Court decided against the Institute. However, the Supreme Court, on 2 February 2021, upheld the Institute’s appeal on points of law and ordered the applicant to transfer the sum of approximately EUR 34,000 to the Institute.

The Constitutional Court decided not to accept the applicant’s constitutional complaints for consideration.

The applicant complains under Article 6 § 1 of the Convention that the Supreme Court decided arbitrarily – its 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, he complains under Article 1 of Protocol No. 1 to the Convention and Article 14 of the Convention that the Supreme Court’s decisions amounted to an unreasonable interpretation of the relevant legislation as a result of which he was unable to receive the reimbursement of medical costs based on his health insurance just because he had been unable to make an advance payment himself. He alleges that he was discriminated against on the basis of his 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 his right guaranteed by Article 1 of Protocol No. 1, contrary to Article 14 of the Convention, based on his economic situation?

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