26 May 2003 № J-157/2003
The Constitutional Court of the Republic of Belarus in composition of Presiding Officer- Chairman of the Constitutional Court G.A. Vasilevich, Deputy Chairman A.V. Maryskin, judges T.S. Boiko, G.A. Vorobei, K.I. Kenik, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, G.B. Shishko, V. Z. Shuklin
with participation of the representatives:
of the House of Representatives of the National Assembly of the Republic of Belarus - A.M. Arkhipov, Head of Standing Committee on legislation and judicial legal issues; V.N. Lektorov, Head of Standing Committee on health protection, physical culture, family and youth affairs; V.V. Parfenovich, Deputy Head of Standing Committee on health protection, physical culture, family and youth affairs;
Council of the Republic of the National Assembly of the Republic of Belarus - E.G. Komotskaya, Deputy Head of the main expert legal department of the Secretariat of the Council of the Republic;
The Council of Ministers of the Republic of Belarus - A.C. Romanenkov, Deputy Minister of public health services of the Republic of Belarus,
has considered in open court session the case "On the conformity to the Constitution of the Republic of Belarus of Article 5 of the Law of the Republic of Belarus "On public health protection", of Resolution of the Cabinet of Ministers of the Republic of Belarus of 27 August 1996 No. 566 "On paid medical aid and services rendered in official state bodies of public health protection", Resolution of the Council of Ministers of the Republic of Belarus of 28 June 2002 No. 871 "On approval of Provision on the procedure of rendering of paid medical services in state organizations of public health protection".
The court session was attended by: I.A. Mironichenko -Deputy Chairman of the Supreme Court of the Republic of Belarus; L.G. Kozyrev - Deputy Chairman of the Supreme Economic Court of the Republic of Belarus; N. M. Kupriyanov - Deputy Prosecutor General of the Republic of Belarus; O.E. Kravtsov - Deputy Minister of Justice of the Republic of Belarus.
The proceedings have been brought by the Constitutional Court of 3 December 2002 as a result of the motion of the House of Representatives of the National Assembly of the Republic of Belarus on the grounds of Article 116 of the Constitution of the Republic of Belarus, Articles 5 and 6 of the Law "On the Constitutional Court of the Republic of Belarus" and Article 43 of the Rules of Procedure of the Constitutional Court of the Republic of Belarus.
The subject to verification was Article 5 of the Law of the Republic of Belarus of 18 June 1993 "On public health protection" in wording of the Law of 11 January 2002 (National Register of legal acts of the Republic of Belarus, 2002, No. 10, 2/840), Resolution of the Cabinet of Ministers of the Republic of Belarus of 27 August 1996 No. 566 "On paid medical aid and services rendered in official state bodies of public health protection" with amendments made by Resolutions of 31 December 1997 No. 1764, of 3 August 1998 No. 1223, of 26 June 2001 No. 954 (Collection of Decrees of the President and Resolutions of the Council of Ministers of the Republic of Belarus, 1996, No. 25, art. 653; Collection of Decrees and Edicts of the President and Resolutions of the Council of Ministers of the Republic of Belarus, 1998, No. 22, art. 593; National Register of legal acts of the Republic of Belarus, 2001, No. 63, 5/6300), as well as Resolution of the Council of Ministers of the Republic of Belarus of 28 June 2002 No. 871 "On approval of Provision on the procedure of rendering paid medical services in state organizations of public health protection" 2002 (National Register of legal acts of the Republic of Belarus, 2002, No. 78, 5/10724).
The House of Representatives of the National Assembly of the Republic of Belarus has offered to give the conclusion on constitutionality of Article 5 Law 1993 "On public health protection" and of the mentioned Resolutions of the Government of the Republic of Belarus" and specified, that the introduction of paid types of medical aid and services gives rise to ambiguous reaction in the population and medical workers of the Republic, the numerous references of citizens raise the question on constitutionality of the normative legal acts regulating rendering types of medical aid and services.
The proceedings have been suspended of 3 March 2003 as a result of the motion of the Council of Ministers of the Republic of Belarus due to the necessity of additional study of materials and circumstances of the case, as well as due to planned consideration at session of Presidium of the Council of Ministers of the Republic of Belarus of the issue concerning rendering medical aid and paid services for the population, including medical services.
Having heard judge-speaker K.I. Kenik, information of representatives as the parties and a specialist, having analyzed the appropriate provisions of the Constitution, international legal acts, laws and other normative legal acts, practice of their application, the Constitutional Court has found the following.
Resolution of the Council of Ministers of the Republic of Belarus of 25 April 2003 No. 556 has approved new Provision on the procedure of rendering paid medical services in state organizations of public health protection and new List of paid medical services rendered in state organizations of public health protection (National Register of the legal acts of the Republic of Belarus, 2003, No. 50, 5/12380). The same Resolution has found to be null and void Resolution of the Cabinet of Ministers of the Republic of Belarus of 27 August 1996 No. 566 "On paid medical aid and services rendered in official state bodies of public health protection" (with further amendments) and Resolution of the Council of Ministers of the Republic of Belarus of 28 June 2002 No. 871 "On approval of Provision on the procedure of rendering of paid medical services in state organizations of public health protection", which were subject to verification of their constitutionality.
Due to cancellation of Resolutions of the Government, which were a subject to examination by the Constitutional Court, the proceedings on verification of their constitutionality according to Article 27 of the Law "On the Constitutional Court of the Republic of Belarus" and Article 22 of the Rules of Procedure of the Constitutional Court shall be subject to termination.
At the same time, the Constitutional Court shall take into account that the new List of paid medical services rendered in state organizations of public health protection has reduced almost twice, in comparison with the previously effective List, the scope of paid medical services rendered by state organizations of public health protection and established that the paid medical services are additional as to the scope of free medical aid guaranteed by the State. These services shall be rendered at will of a citizen on the basis of the concluded writing agreement of rendering medical services.
Alongside with the Resolutions of the Government, the motion of the House of Representatives of the National Assembly has also specified Article 5 of the Law "On public health protection" as a subject to verification.
The Constitution of the Republic of Belarus guarantees the citizens of the Republic of Belarus the right to health protection, including free treatment at state health-care establishments. The State shall make health care facilities accessible to all of its citizens (Article 45).
According to Article 12 of International Covenant on Economic, Social and Cultural Rights the State Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. The steps to be accepted by the State Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the creation of the conditions, which would assure to all medical service and medical attention in the event of sickness.
The Law "On public health protection", by defining the right of the citizens of the Republic of Belarus to health protection, shall envisage that the citizens of the Republic of Belarus irrespective of sex, race, language, nationality, official and social status, habitation, relation to religion, belief and other circumstances, shall have the right to health protection. This right is secured by environmental protection, creation of favorable working conditions, mode of life, rest, hygienic education and training of the citizens, production and realization of good-quality meal products, creation of conditions for going in for physical culture and sports, as well as rendering the population accessible medical aid, including free treatment at state organizations of public health protection (Article 5 of the Law).
Part three of Article 5 of the specified Law shall stipulated, that the state establishments of public health protection may render paid medical services according to the list and procedure defined by the Council of Ministers of the Republic of Belarus.
The Constitutional Court emphasizes that Article 1 of the Law "On public health protection" shall give definitions of the notions it contains (health, health protection services etc.), however, there are no definitions of such notions as treatment, medical service, are not defined. The Law "On public health protection" defines medical aid as a complex of medical measures on conservation and strengthening of health of people including prevention, diagnostics, treatment, rehabilitation, prosthesis. According to the branch classification register "Simple medical services", approved by Order of the Ministry of public health protection of the Republic of Belarus of 14 December 2001 No. 272, the medical services are measures or complex of measures directed to prevention of diseases, their diagnostics and treatment of self-importance and with specified cost.
Based on the sense and the content of Article 5 of the Law "On public health protection", the Constitutional Court deems, that rendering paid medical services (medical services of collateral importance - under terminology of the World Health Organization) shall be admissible over guaranteed scope of medical aid fixed as state social guarantees in the field of public health protection.
At the same time, the former practice of rendering paid medical aid and services shall signify about extensive interpretation in certain instances by public health establishments of the possibilities of collection of payment for diagnostic measures, including those of them, which were included into the obligatory list of free medical aid and services.
The Law of the Republic of Belarus of 11 November 1999 "On state minimum social standards" (with amendments made by the Law of 4 January 2003) shall enumerate the state minimum standards in the field of public health protection, which, in particular, shall include the services in rendering stationary, out-patient and first help, except for paid medical aid and services rendered at state bodies of public health protection specified by the Government of the Republic of Belarus; norms and standards of material and technical, medicament, personnel ensuring at state bodies of public health protection of various types and kinds; meal norms, regimentals, soft stock at state bodies of public health protection; standards and specifications of preferential securing by the medicinal drugs, by dressing and articles of medical assignment, acoustical devices, eye artificial limbs and artificial teeth services (Article 9).
The formation and application of state minimum social standards should be realized as it follows from Article 3 of the specified Law, based on the principles of observance of constitutional rights of citizens in the field of social guarantees; all-round validity of their establishment and application based on economic possibilities of the State; general availability; their object and address financing; wide informing of citizens through mass media about the social standards in question.
Establishment of state minimum social standards, based on economic possibilities of the State, is also admissible under international legal acts. Thus Article 2 of International Covenant on Economic, Social and Cultural Rights shall envisage the obligation of the states, participating in The pact, in the individual order and by way of the international help and cooperation, in particular in economic and technical areas, to accept in the maximal limits of available resources of a measure providing gradually complete accomplishment of the rights, recognized in the Convention, with all appropriate ways, switching, in particular, adoption of legislative measures.
Resolution of the Council of Ministers of the Republic of Belarus of 18 July 2002 No. 963 "On state minimum social standards in the field of public health protection" establishes the basic types of services on rendering the stationary, out-patient and first help, which are realizing by state organizations of public health protection free-of-charge and according to the specified list. This list contains types of services on rendering the primary medical and sanitary, first and stationary help realized by state organizations of public health protection free-of-charge, which are directed on satisfaction of the basic needs of a person in medical treatment and health services, because they include the basic types of the primary medical and sanitary help, first help rendered at conditions of threatening life, and stationary help at presence of medical indications.
In view of the fact that paid medical services are additional to the scope of free medical aid guaranteed by the State, the Constitutional Court considers, that the provisions of Article 5 of the Law "On public health protection" on the possibility of rendering by state organizations of public health protection of medical services do not contradict the Constitution of the Republic of Belarus and international legal acts, though the specified Law is in need of specification of a number of the terms and notions used in it for the purposes of their unique understanding and application.
Guided by Article 116 of the Constitution of the Republic of Belarus, Articles 5, 6, 9, 11, 34, 38, 40, 43 of the Law "On the Constitutional Court of the Republic of Belarus", the Constitutional Court
RULED:
1. To find Article 5 of the Law of the Republic of Belarus "On public health protection" to be in line with the Constitution of the Republic of Belarus.
2. Due to finding by Resolution of the Council of Ministers of the Republic of Belarus of 25 April 2003 No. 556 to be null and void Resolution of the Cabinet of Ministers of the Republic of Belarus of 27 August 1996 No. 566 "On paid types of medical aid and services rendered at state bodies of public health protection" (with the relevant amendments) and Resolution of the Council of Ministers of the Republic of Belarus of 28 June 2002 No. 871 "On approval of the Provision on the procedure of rendering paid medical services at state organizations of public health protection", the proceedings on verification of their constitutionality in accordance with Article 27 of the Law "On the Constitutional Court of the Republic of Belarus" shall be terminated.
3. For the Council of Ministers of the Republic of Belarus to provide execution of the Laws "On public health protection", "On state minimum social standards" for the purposes of more complete realization by the citizens of the constitutional right to health protection.
4. To publish the present Judgment within ten days period of time from the day of its adoption in newspapers "Zvyazda", "Nationalnaya gazeta", National register of legal acts of the Republic of Belarus, as well as in "Bulletin of the Constitutional Court of the Republic of Belarus".
5. The present Judgment shall come into legal force from the date of its proclamation, is final and subject to no appeal or protest.
Presiding Officer —
Chairman of the
of the