The authorities’ failure to provide free drugs to cancer patient due to a state budget restriction violates the right to property.

JUDGMENT

Fedulov v. Russia 8/10/2019 (no. 53068/08)

see here 

SUMMARY

The applicant is suffering from cancer. Appropriate free medical care was deemed , but it was unjustifiably discontinued only in the second month of administration. The domestic court dismissed his request for the continuation of the free supply of medicines and reimbursement of costs so far, due to an excess of the state budget.

The court  has pointed out that social welfare benefits fall within the scope of Article 1 of Protocol 1 because they constitute occupation consisting of ‘legitimate expectations’ of citizens towards the State, therefore when the amount of benefits is reduced or interrupted, this may constitute intervention in the properties requiring justification, and concluded that the final refusal by the domestic authorities at issue, for lack of funds, had no basis in national law, was arbitrary and violate Article 1 of the Additional Protocol.

PROVISION

Article 1 of the Additional Protocol.

PRINCIPAL FACTS

The applicant, Igor Fedulov, is a Russian national who was born in 1949 and lives in St Petersburg
(Russia).

The case concerned his complaint about the authorities’ failure to provide him with the free drugs to
which he had been entitled for his cancer care.

Mr Fedulov was diagnosed with cancer in 2007. He was found to be entitled to free medicine, in his
case Bicalutamide, which he needed for eight to 12 months.

However, the pharmacy assigned to provide him with the pills free of charge only supplied him once
on those terms. On all other occasions it told him it was out of stock of free Bicalutamide but that he
could buy it at his own expense. Over the following months he paid 1,400 euros for the treatment.
He complained to the authorities and the courts about the lack of free medicine and sought to have
his expenses reimbursed, but in February 2008 the District Court rejected his claim in full. It found
that the authorities involved, the St Petersburg Medical Insurance Fund and the St Petersburg
Healthcare Committee, had done all that was required of them by law.

In particular, the St Petersburg Medical Insurance Fund had fulfilled its obligation to request funds
from the Federal Medical Insurance Fund to pay for free medicines but the Federal fund had
rejected the request in 2007 as the federal budget set for that purpose had already been exceeded.

Relying on Article 1 of Protocol No. 1 (protection of property), the applicant complained about the
fact that he had not been provided with the free medicine to which he had been entitled by law and
that the authorities had failed to reimburse him after he had had to buy the necessary drugs himself.

THE DECISION OF THE COURT

The Court has consistently held that the principles which apply generally in cases under Article 1 of Protocol No. 1 to the Convention are equally relevant when it comes to social and welfare benefits. In particular, it has previously addressed the issue of legitimate expectations in the context of such benefits

More specifically, it has held that Article 1 of Protocol No. 1 imposes no restriction on the Contracting State’s freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. If, however, a Contracting State has in force legislation providing for the payment as of right of a welfare benefit – whether conditional or not on the prior payment of contributions – that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements

At the same time, an assertable right to a welfare benefit which does not fall short of a sufficiently established, substantive proprietary interest under the national law constitutes a possession consisting in a “legitimate expectation”and thus enjoys the protection of Article 1 of Protocol No. 1. Where the amount of such benefit is reduced or discontinued, this may constitute an interference with possessions which requires justification

In the present case, the Court notes that in the relevant period, legislation was in force in the respondent State that had put in place a system of State social support for certain vulnerable categories of the population, including individuals with disabilities. Such individuals were entitled, in particular, to get medicines free of charge provided that they satisfied a number of conditions established in the relevant legal instruments..

The Court finds it important to stress that a State has a wide margin of appreciation in implementing social and economic policies, including, in particular, enacting laws in the context of a change of political or economic regime, adopting policies to protect the public purse or reallocate funds, and introducing austerity measures prompted by a major economic crisis

The Court has accepted the possibility of amendments to social-security legislation which may be adopted in response to societal changes and evolving views on the categories of persons who need social assistance, and also to the evolution of individual situations. In present-day conditions, these considerations play a primordial role in assessing complaints going to the impairment of social welfare rights, and they undoubtedly provide the State with a wide margin of appreciation in rationalising their social-security systems.

The situation in the present case, however, was not prompted by any changes in legislation. As it has been noted above, the applicant’s eligibility for the benefit in question was never called into doubt by any of the authorities, nor was it ever alleged that he did not satisfy any of the stipulated conditions, that his relevant status had changed, or that any legal conditions had changed so that he failed to satisfy any of those conditions.

To sum up, the Court concludes that the ultimate denial of the provision of the benefit in question to the applicant by the domestic authorities, with reference to a lack of funds, had no basis in domestic law and was arbitrary. This conclusion makes it unnecessary for the Court to ascertain whether a fair balance has been struck between the demands of the general interest of the community on the one hand, and the requirements of the protection of the individual’s fundamental rights on the other (see, among other authorities.

There has therefore been a violation of Article 1 of Protocol No. 1 to the Convention echrcaselaw.com.


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