Subasic v. Croatia

In August 1998, Maja Šubašić, a Croatian national, gave birth prematurely to twin girls while visiting Athens. As a result, her daughters had to be hospitalized in Athens for three months. In October, the Croatian Health Insurance Fund reimbursed Mrs. Šubašić for the costs of her own medical treatment. In April 1999, however, the Fund declined to reimburse the costs of her daughters’ medical treatment because her daughters were not registered as insured persons.

Šubašić appealed to the Directorate of the Fund. She argued that her daughters acquired insured status at their birth. The Directorate dismissed her appeal insisting that her daughters’ insured status dated only to April 1999. This was because she failed to notify the Consulate of the Republic of Croatia in Athens of their birth and registered them properly only after the initial rejection by the Fund. Šubašić’s appeal to the Administrative Court was dismissed. Šubašić then appealed to the Constitutional Court, which dismissed her appeal on the grounds that Croatian administrative law prevented lower authorities from questioning the lawfulness and correctness of the proceedings for the acquisition of the daughters’ insured status. Those proceedings were different from the decision about reimbursement and must be challenged separately.

Šubašić subsequently applied to the European Court of Human Rights arguing that the Croatian government violated her right to property under Article 1 of Protocol No. 1 of the European Convention on Human Rights; her right to respect for her family life under Article 8; and her rights to a fair hearing and effective remedy for a rights violation under Article 6(1) and Article 13. She also argued that the government violated Article 14 because they discriminated on the ground that she had given birth abroad.

The Court declared Šubašić’s application inadmissible under Article 35(1) of the Convention on the grounds that she had failed to exhaust all domestic remedies for her complaint.

With respect to the decision by the Constitutional Court to uphold the initial decision to refuse the applicant’s request for reimbursement, the Court recognized that the Croatian Administrative Procedure Act prevented an administrative authority from deciding on an issue (here, whether the daughters were insured persons at the relevant dates) that had already been finally decided by a court, a different administrative authority, or the same administrative authority in separate proceedings. The Court accepted that this rule was a valid means for the Croatian government to protect the principles of separation of powers and legal certainty. The Court found that the Constitutional Court’s decision still allowed Mrs. Šubašićto correct the mistake about the date in her daughters’ insurance registration through separate administrative proceedings, though she had not yet done so.

The Court found no evidence that the Croatian court decisions were arbitrary, lacked impartiality, or were otherwise unfair. The Court also emphasized that the “effectiveness” of a “remedy” under Article 13 does not require certainty of a favorable outcome for the applicant.

“Having regard to the reasoning of the Constitutional Court, the Court notes that, under Croatian law…an administrative authority is not allowed to decide on a preliminary issue that has already been finally decided as the main issue by a court or the same or different administrative authority in separate proceedings – a rule that, in the Court’s view, serves to maintain the principle of separation of powers and promote legal certainty.” (pages12-13)

“The Court further notes that the Croatian legal system nevertheless allowed, and still allows, the applicant to correct the mistakes made by the domestic authorities when registering her daughters as insured persons with the Croatian Health Insurance Fund and their domicile with the Ministry of the Interior, and, ultimately, to obtain reimbursement of costs of their medical treatment in Greece. Namely, by instituting separate administrative proceedings…It follows that this complaint is inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies and must be rejected pursuant to Article 35 § 4 thereof.” (page13)

“As regards the applicant’s complaint under Article 13 of the Convention, the Court reiterates that the “effectiveness” of a “remedy” within the meaning of that Article does not depend on the certainty of a favourable outcome for the applicant.” (page15)