CASE OF CENTRE FOR THE DEVELOPMENT OF ANALYTICAL PSYCHOLOGY v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos
5. In 1995 Dr Marija Arsovska, a psychiatrist whose name at the time was Marija Karanfilova (“the psychiatrist”), established a private practice called Dr Marija Karanfilova’s Independent Psychiatric Practice (Самостојна специјалистичка ординација по невропсихијатрија „Д-р Марија Каранфилова„ – “the Practice”) where she treated people using Carl Jung’s analytical psychotherapy methods. The Practice was assigned an individual tax number beginning with the numbers 503. 6. In 2004 the Practice signed a contract with the State Health Insurance Fund (“the Fund”) on the funding of treatment provided by the Practice to health insurance beneficiaries. 7. On 15 February 2006 the Ministry of Health’s State Sanitation and Health Inspectorate (“the Inspectorate”) conducted an on-site inspection (инспекциски надзор). It ordered the Practice to re-register as a private health institution in order to comply with amendments to the Health Protection Act of 2004 (Закон за изменување и дополнување на Законот за здравствена заштита, Official Gazette no. 10/04). 8. In compliance with the Inspectorate’s orders, the psychiatrist applied to the Ministry of Health to have the Practice re-registered and to change its name, as required by the new statutory provisions. 9. On 28 February 2006 the Ministry of Health issued a decision on the registration of the Private health institution Dr Marija Karanfilova’s Specialist Psychiatric Practice (Приватна здравствена установа – специјалистичка ординација по невропсихијатрија „Д-р Марија Каранфилова„ – “the new Practice”) at the same address as the previous Practice. It stated that the 1995 registration decision relating to the original Practice would no longer be in force (ќе престане да важи) after the new decision had been entered into the relevant register. The decision was delivered to several institutions, including the Fund. 10. The Inspectorate conducted a fresh on-site inspection on 6 March 2006. It concluded that the Practice had fully complied with its decision of 15 February 2006, including the instructions for re-registration. 11. On 17 April 2006 the Central Registry recorded the registration of the new Practice as of 29 March 2006. It was given a new individual tax number, beginning with the numbers 403. 12. On 6 June 2006 the new Practice notified the Fund about the changes in its registration, including the change of its name. 13. On 29 November 2006 the Fund notified the new Practice that it did not intend to sign a new contract after the expiry of the previous one. 14. On 2 August 2007, on the basis of a request by the new Practice, the Central Registry allowed the new Practice to change from being a private health institution to one that was a limited liability company established by a single person (ДООЕЛ) and entered that transformation in its records. The applicant company was known officially as the Centre for the Development of Analytical Psychology Ltd. (Центар за развој на аналитичка психологија – ДООЕЛ). It kept the same tax number as the new Practice. The link between the new Practice and the applicant company was not disputed in the impugned proceedings (see below). 15. On 25 January 2006 the Practice initiated compensation proceedings against the Fund in the Skopje Court of First Instance (Основен суд Скопје) for non-adherence to the terms of the contract. Both the new Practice and the applicant company continued the proceedings as the claimant. 16. On 10 June 2008 the first-instance court granted the claim in part. 17. On 26 August 2008 the Fund lodged an appeal against the firstinstance judgment, objecting to the applicant company’s standing in the proceedings for the first time. It argued that the claimant was a different legal entity than the one which had signed the contract with the Fund in 2004, as evident in the two entities’ different individual tax numbers. 18. The applicant company submitted in reply that the re-registration of the Practice had been carried out in compliance with the Inspectorate’s orders and that the Fund had been aware of the changes. It also argued that the Fund had implicitly recognised the legal continuity of the two entities as it had accepted reports submitted by the new Practice under the contract of 2004 and had given notice of the termination of the contract to the new Practice. 19. The Skopje Court of Appeal (Апелационен суд Скопје) on 28 January 2009 granted the Fund’s appeal and remitted the case for fresh consideration. 20. On 10 April 2009 the Skopje Court of First Instance dismissed the applicant company’s claim, finding that it had no standing in the proceedings (нема активна легитимација во спорот). It established that the contract had been signed by the Fund and Dr Marija Karanfilova’s Independent Psychiatric Practice and that the applicant company could not be considered as the Practice’s legal successor as they had different individual tax numbers. 21. The applicant company appealed, complaining that the first-instance court had disregarded the evidence that had shown the existence of a legal relationship between the parties and had based its assessment solely on the different tax numbers. In particular, the first-instance court had disregarded the fact that the new Practice had continued to perform its contractual obligations until the contract had been terminated by the notice of 29 November 2006 (see paragraph 13 above). The applicant company maintained that those circumstances indicated that the Fund had implicitly recognised the legal continuity of the original and the new Practice. The applicant company alleged that the formalistic approach of the first-instance court had meant its claim had remained undecided on the merits. 22. On 2 December 2009 the Skopje Court of Appeal dismissed the applicant company’s appeal and upheld the first-instance judgment. 23. On 7 July 2006 the new Practice lodged a civil claim against the Fund for the payment of an undetermined sum for failing to adhere to the terms of the contract of 2004. After the new Practice turned itself into the applicant company (see paragraph 14 above) the latter continued the proceedings as the claimant. 24. At a hearing held on 27 June 2008 the Fund raised an objection that the applicant company lacked standing in the proceedings. 25. On 16 February 2009 the Skopje Court of First Instance dismissed the applicant company’s claim, finding that it had no standing in the proceedings. The first-instance court relied in its reasoning on the difference in the tax numbers between the original Practice that had been party to the contract with the Fund in 2004 and the applicant company. 26. On 11 December 2009 the Skopje Court of Appeal dismissed an appeal by the applicant company and upheld the first-instance judgment. It stressed that a tax number was a unique attribute of a particular entity and would remain unchanged, regardless of any structural or other changes to the entity.