FIRST SECTION
Application no. 48386/09
Maja MITKOVA against the former Yugoslav Republic of Macedonia
lodged on 4 September 2009
STATEMENT OF FACTS
The applicant, Ms Maja Mitkova, is a Macedonian national, who was born in 1954 and lives in Ohrid. She is represented before the Court by Mr A. Godžo and Mr D. Godžo, lawyers practising in Ohrid.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background of the case
The applicant suffered from multiple sclerosis.
On 1 April 1994 the Ministry of Health (“the Ministry”) issued a certificate allowing a bank, in which the applicant’s father had a foreign currency savings account, to transfer 20,000 US dollars into the account of a hospital in the United States covering medical expenses related to a treatment, which the applicant was expected to undergo. That certificate was issued under the relevant legislation applicable at the time (see the “Relevant domestic law” described in Trajkovski v. the former Yugoslav Republic of Macedonia (dec.), no. 53320/99, 7 March 2002). It was given on the basis of a medical report (конзилијарно мислење) given by Skopje Neurology Clinic according to which “[the applicant] suffers from multiple sclerosis, which requires further medical examination and treatment in a medical institution overseas given the fact that all possibilities for her treatment in the State are exhausted”.
Between 24 May and 24 June 1994 the applicant underwent a medical treatment in hospital H.H.I. in the United States.
On 12 July 1994 Skopje Neurology Clinic issued another medical report (конзилијарно мислење) according to which “it has been impossible to treat the disease in the State due to the critical state of her health and the Clinic’s calendar of events. [The applicant] should leave immediately or in the middle of the month at the latest”. Three doctors who signed the opinion confirmed that it was impossible to treat the disease in the respondent State. As stated in the opinion, it was expected that the treatment overseas would prevent the progressive deterioration in the applicant’s health.
2. Administrative proceedings instituted by the applicant
On 5 July 1994 the applicant requested that the Health Insurance Fund (“the Fund”) approves her treatment in hospital H.H.I. (решение за упатување на лекување во странство) and reimburses medical expenses.
With decisions of 8 December 1994 and 21 September 1995 respectively the Fund dismissed the applicant’s claim for ex post facto approval of her treatment in the US and ordered a partial reimbursement of the medical expenses. It appears that those decisions were taken after an expert commission, set up within the Fund, had drawn up a medical report according to which the applicant’s health had not been life-threatening and she could have been treated in the respondent State.
Between March 1998 and December 2006, the applicant’s case was decided on five occasions by the Ministry, as the second-instance body and the Supreme Court, which decided, in administrative-dispute proceedings (тужба за управен спор), an appeal by the applicant. During this time, an expert commission set up within the Ministry drew up medical reports of 14 December 2000 and 3 November 2004 according to which the applicant’s disease could have been treated, at the time, in the respondent State. With decisions of 14 January 1998 (U.br. 1070/1998), 25 March 1998 (U.br.3910/96), 22 November 2000 (U.br.517/99), 13 November 2003 (U.br.599/2001) and 14 December 2006 (U.br.2570/2004) the Supreme Court accepted the applicant’s appeal and remitted the case for a fresh examination by the Ministry. The Supreme Court found errors on the facts since there had been conflicting medical evidence as to whether the applicant’s disease could have been treated in the respondent State at the relevant time. The court referred to the applicant’s poor health and urgent need for medical assistance, as noted in the Clinic’s medical reports of 1994. It further noted that the Ministry’s Commission had not explained why it had considered, contrary to the 1994 reports, that the applicant could be treated in the respondent State. In decision U.br.2570/2004 of 14 December 2006 the Supreme Court further requested that doctors, who had drawn up the 1994 medical report (presumably the report dated 12 July 1994), give evidence as to the disputed facts.
In a decision of 8 October 2007, the Ministry confirmed its earlier findings. It did so after it had consulted, by phone, the doctors who had given the 1994 report. Two doctors confirmed the validity of that report and the third doctor stated that he did not remember the applicant’s case. However, in the Ministry’s opinion, its commission was the only authorised body to decide whether a particular medical treatment was possible in the respondent State. The applicant had no right to receive medical treatment in the US since the commission had found that she could be treated in the respondent State.
The applicant challenged the Ministry’s decision seeking, under the Administrative Disputes Act (see “Relevant domestic law” below), that the Supreme Court held an oral hearing in order to hear evidence from the doctors who had drawn up the 1994 medical report, the Chairman of the Ministry’s commission and Dr. R.L., her treating doctor.
On 22 January 2009 the Administrative Court, which had meanwhile become competent to decide in administrative-dispute proceedings, held a hearing in private and dismissed the applicant’s appeal. It ruled that the administrative bodies had correctly applied sections 10 § 1 (14) and 30 of the 2000 Health Insurance Act (see “Relevant domestic law” below) awarding the applicant partial compensation of the medical expenses regarding her treatment in hospital H.H.I. in 1994. It found that the applicant had sought medical assistance abroad on her own volition and without a medical report, which had been issued on 12 July 1994, notably after she had returned in the respondent State. Relying on findings of the Ministry’s commission, the court dismissed the applicant’s arguments regarding the conflicting medical evidence. It concluded accordingly that the administrative bodies had complied with the Supreme Court’s instructions. The court did not address the applicant’s request for an oral hearing. This decision was served on the applicant on 6 March 2009.
B. Relevant domestic law
1. Administrative Disputes Act of 2006
Section 30 of the Act provides that the court decides, in principle, on a hearing held in private. It can hold a public hearing if the case is complex; in order to solve disputed issues; when it establishes facts and adduces evidence. A party to the proceedings can request the court to hold a public hearing.
2. Health Protection Act of 1991 (Закон за здравствената заштита)
Under section 44 of the Act, a person suffering from a disease that could not be treated in the State was entitled to receive medical assistance abroad, where such disease could be successfully treated, under conditions specified by Rules of the Ministry of Health.
3. Health Insurance Act of 2000 (Official Gazette no. 25/2000, Закон за здравственото осигурување)
Section 10 § 1 (14) of the Act provides that compulsory medical insurance does not concern unauthorised medical treatment abroad regarding expenses that exceed those for the corresponding services in the State.
Section 30 provides for the same rules specified in section 44 of 1991 Health Protection Act.
4. Rules regarding medical treatment overseas of 1992 (Правилник за начинот и условите на упатување на осигурениците на лекување во странство)
The Rules regulated the manner and conditions under which health-insurance beneficiaries could be granted medical treatment abroad at the expense of the State. It also contained rules concerning partial or full reimbursement of medical expenses related to such treatment.
COMPLAINTS
The applicant complains under Article 6 of the Convention that there was no oral hearing notwithstanding her explicit request; that the length of the impugned proceedings was excessive; and that she was denied the opportunity to have knowledge of and comment on all evidence adduced. She further complains under Article 1 of Protocol No. 1 to the Convention about the domestic authorities’ decision for partial reimbursement of the medical expenses. Lastly, she complains under Article 14 of the Convention that she was discriminated against on the basis of her health.
QUESTIONS TO THE PARTIES
1. 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? In particular, has there been a public hearing in the present case as required by Article 6 § 1 of the Convention?
2. Was the length of the administrative proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
3. Can the applicant’s claim be considered as an asset which she could “legitimately expect” to see realised? If so, did the decision awarding partial compensation to the applicant amount to an interference with her rights guaranteed under Article 1 of Protocol No. 1? If so, was that interference justified?
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