AS TO THE ADMISSIBILITY OF
Application No. 24537/94
by Petros DIKIGOROPOULOS
against Cyprus
The European Commission of Human Rights (Second Chamber) sitting
in private on 22 February 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 9 March 1994 by
Petros DIKIGOROPOULOS against Cyprus and registered on 5 July 1994
under file No. 24537/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Cypriot citizen, born in 1926 in Cyprus,
currently residing in Strovolos, Cyprus.
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows:
A. Particular circumstances of the case
In April 1988 the applicant travelled to the United Kingdom to
undergo open heart surgery at the expense of the state of Cyprus. The
applicant's displacement was authorised by the Ministry of Health under
the plan for the sending of patients for treatment abroad at the
expense of the Republic. Before leaving Cyprus, however, the applicant
made the following declaration:
"I declare that I undertake to reimburse, when I return to
Cyprus after my treatment abroad, to the Medical and Public
Health Services of the Republic any amount which the
competent authorities, after examining my financial
situation, will decide that I have to reimburse."
On the applicant's return to Cyprus, the Social Welfare
Department of the Ministry of Health prepared a report on the
applicant's social and economic situation. On 2 March 1989 the General
Director of the Ministry of Health considered, on the basis of the
report, that the applicant should reimburse to the State an amount
corresponding to his travel expenses and the expenses incurred by him
for food and accommodation during his stay in the United Kingdom
outside hospital. The report was transmitted to the Ministry of Finance
which was invited to express its views.
On 23 March 1989 the General Director of the Ministry of Finance
notified the General Director of the Ministry of Health that he
disagreed with his assessment. In the view of the Director of the
Ministry of Finance, the applicant should reimburse all expenses.
According to his experience and relevant information he had gathered
from the Ministry of Education, the Director of the Ministry of Finance
considered that the income of the applicant, who was operating the
canteen of the Technical School of Nicosia, must be very high. The
Director proposed the drafting of a new report on the applicant's
situation.
Such a report was submitted on 27 September 1989. It concluded
that the applicant's situation was very satisfactory and that he was
in a position to contribute significantly towards the cost of his
treatment abroad. Thereupon the Ministry of Health decided that the
applicant should reimburse the State CYP 10,948, a sum corresponding
to the entire cost of his treatment abroad. The decision was notified
to the applicant on 3 November 1989.
The applicant challenged the decision before the Supreme Court
relying on the following four grounds of appeal. First, domestic law
had been violated since the disagreement between the Ministries of
Health and Finance should have been resolved at ministerial level and
the opinion of the Director of the Ministry of Health should have been
obtained for a second time before the applicant was ordered to pay the
sum at issue.
Secondly, the decision ordering him to pay the sum was not based
on a proper and full enquiry into his situation. More in particular,
the first report was ignored, although it contained relevant and
accurate information, for example that the applicant was not liable to
pay any income tax in 1987. The second report was, on the contrary,
relied on, although it was contradictory and based on information
provided by an incompetent organ, the Ministry of Education. The second
report did not contain any information on the applicant's family
situation. The Minister, moreover, overlooked the conclusions of the
second report, which had only recommended that the applicant make a
substantial contribution, and ordered him to reimburse the entire sum
without giving any reasons.
Thirdly, the Ministry of Health in issuing the decision did not
exercise discretionary powers, considering itself bound by the opinion
of the Ministry of Education. Fourthly, the decision was not adequately
reasoned.
On 18 January 1991 a single judge of the Supreme Court pronounced
on the applicant's appeal. Giving a general interpretation of the
relevant domestic law, the judge considered that the Minister of Health
was exercising discretionary powers when deciding whether a particular
individual should bear, in the light of his social and financial
situation, part or the entirety of the costs of his treatment abroad.
The single judge then rejected a preliminary objection, raised
by the State and opposed by the applicant, to the effect that the
dispute was of a private law nature coming within the competence of the
civil courts.
As regards the applicant's first ground of appeal, the judge
considered that national law had not been violated, since the two
Ministries found themselves in complete agreement at the end of the day
and there was no reason for the Director of the Ministry to express a
fresh opinion.
As regards the applicant's second ground, the judge considered
that the enquiry into the applicant's situation was in every respect
adequate. The Minister took into consideration the information
contained in both reports which formed an inseparable whole. The first
report contained adequate information on the applicant's social
situation, there was nothing improper in seeking the assistance of the
Ministry of Education and the Minister was under no obligation to
justify his reaching a different conclusion than the report.
As regards the third ground of appeal, the judge considered that
the decision complained of was reached by the competent organ which did
not consider itself in any manner bound by the report. The fourth
ground of appeal was finally dismissed on the basis that the decision
was reasonable and within the limits of the organ's discretionary
powers. It was also adequately reasoned, the reasons actually provided
being supplemented by the contents of the administrative file. As a
result, the applicant's appeal was rejected.
The applicant appealed against the decision of the single judge
to the Supreme Court, sitting in plenary, relying on the first two of
the above-mentioned four grounds. On 14 October 1993 the Court rejected
the appeal, considering that the procedural requirements of national
law had been fully respected and that the enquiry into the applicant's
situation was in every respect adequate. The Minister had the right to
reach a different conclusion as to the applicant's ability to
contribute to the cost of his treatment abroad.
B. Relevant domestic law
Regulation 10 of the plan for the sending of patients for
treatment abroad at the expense of the Republic provides the following:
"1. Taking into consideration the financial position of the
patient or his family and on the basis of a social-economic
report prepared by the Department of Social Welfare of the
District Officer which is submitted to the Ministry of
Health, the patient may be released fully from the costs,
or be charged to pay part of all the costs of travelling
and treatment as well as any other costs relevant to his
treatment abroad.
...........
3. The decision for undertaking to pay part or all of the
costs of sending a patient abroad is taken by the Director
General of the Ministry of Health with the consent of the
Director General of the Ministry of Finance."
COMPLAINTS
The applicant complains of a violation of Article 6 para. 1 of
the Convention in that the Ministry of Finance unilaterally determined
his civil liabilities towards the State and, as a result, his civil
rights and obligations were determined without a procès contradictoire.
THE LAW
The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that he did not have the benefit of an adversarial procedure
in the determination of his civil rights and obligations.
Article 6 para. 1 (Art. 6-1) of the Convention guarantees the
right to a fair hearing in the determination of civil rights and
obligations.
The Commission, however, does not consider it necessary to
examine whether the proceedings at issue involved the determination of
the applicant's civil rights and obligations. Even assuming that
Article 6 para. 1 (Art. 6-1) of the Convention applies, the Commission
considers that the facts before it disclose no appearance of a
violation of the requirements of this provision.
The Commission notes in this connection that the applicant did
not allege before the Supreme Court that there was a misconception of
the facts on which the Minister's decision was based. It also notes
that in its judgments of 18 January 1991 and 14 October 1993 the
Supreme Court considered the applicant's submissions on their merits,
point by point, and replied to them.
Having regard to all the above as well as to the respect which
must be accorded, in accordance with the case-law of the Court, to
decisions taken by the administrative authorities on grounds of
expediency and to the nature of the complaints raised by the applicant
(cf. Eur. Court H.R., Zumtobel judgment of 21 September 1993, Series
A no. 268, p. 14, para. 32), the Commission considers that the review
exercised by the Supreme Court in the present case discloses no
appearance of a violation of the requirements of Article 6 para. 1
(Art. 6-1) of the Convention
As a result, the application must be rejected as manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary President
to the Second Chamber of the Second Chamber
(K. ROGGE) (H. DANELIUS)
Full & Egal Universal Law Academy