23 May 2002 № D-141/2002
The Constitutional Court of the Republic of Belarus, comprising of the Presiding Officer — Chairman of the Constitutional Court G.A. Vasilevich, Deputy Chairman A.V. Maryskin, judges T.S. Boiko, K.I. Kenik, V.V. Podgrusha, A.G. Tikovenko, R.I. Filipchik, G.B. Shishko, V.Z. Shuklin, having examined on the basis of Article 40, part one of Article 116 of the Constitution complaints of citizens on constitutionality of Procedure of opening chemist’s shops, chemist’s stations (dispensary), chemist’s kiosks and chemist’s storehouses by economic entities irrespective of the forms of ownership in the territory of the Republic of Belarus (hereafter referred to as the Procedure of opening chemist’s shops), approved by Order of the Ministry of Public Health of the Republic of Belarus of 21 December 1998 No. 366 (with alterations and addenda made thereinto by Resolution of the Ministry of Public Health of the Republic of Belarus of 4 June 2001 No. 41), in part specifying a quantitative limits for opening chemist’s establishments, found the following.
The Law of the Republic of Belarus “On Public Health” (in wording of 11 January 2002) shall envisage that the state policy in the sphere of health protection of the population is directed to securing accessibility of medical aid and medicinal support of the population (Article 3). In accordance with the Law in question the system of public health of the Republic of Belarus shall be state public health and private public health (Article 9), natural and legal persons shall have the right to exercise pharmaceutical activities — professional activities in the sphere of circulation of medicinal remedies, to create organizations for public health in the procedure specified in the legislation and in accordance with nomenclature of organizations of public health approved by the Ministry of Public Health of the Republic of Belarus (Articles 1, 11).
Resolution of the Council of Ministers of the Republic of Belarus of 7 December 1998 No. 1870 “On some issues of circulation in the Republic of Belarus of medicinal remedies, medical products and medical equipment” has specified that the Ministry of Public Health shall work out and approve the procedure of opening chemist’s shops, chemist’s stations (dispensary), chemist’s kiosks and chemist’s storehouses by economic entities irrespective of the forms of ownership.
The Procedure of opening chemist’s shops (with alterations and addenda made thereinto by Resolution of the Ministry of Public Health of 4 June 2001 No. 41) shall specify not only technical requirements as regards opening chemist’s shops, stations (dispensary), kiosks and chemist’s storehouses but also the requirements concerning the location of the establishments in question. Technical requirements shall envisage, in particular, that a chemist’s shop should be located in separately standing buildings or in buildings blocked or co-operated with the establishments, enterprises and dwelling houses, or on the ground floor of many-storeyed, social and dwelling houses; be in the premises isolated as regards premises for other purposes as well as to have separate enter; chemist’s shop of ready for use medicinal forms should have selling area, premises to store medicinal remedies and medical products, administrative and amenity rooms; the total space of a chemist’s shop should be no more than 60 square metres and etc. Conditions concerning specification of the location shall stipulate, that the production chemist’s shop and the chemist’s shop of ready for use medicinal forms may be opened in the cities and settlements, rural area within a radius of service of no less than 1000 metres. In dwelling microraions with dwelling high-storeyed buildings the distance between the chemist’s shops may be reduced to 500 metres with written grounds of local executive and administrative bodies on the necessity of opening a chemist’s shop. Chemist’s kiosk shall be organized no less than 500 metres away from the nearest chemist’s shop or chemist’s kiosk. In accordance with Order of the Ministry of Public Health of 21 December 1998 No. 366 the observance of the requirements in question is a necessary condition for the granting by the economic entities licences to wholesale and retail realization of medical remedies.
Thus, Procedure of opening chemist’s shops shall establish not only technical requirements but also specify expediency for opening the given chemist’s establishments of both state and private forms of ownership.
The Constitutional Court emphasizes that the Law of the Republic of Belarus “On entrepreneur activities in the Republic of Belarus” shall stipulate the right of entrepreneurs to deal with any of economic activities, which is not prohibited by the legislation of the Republic of Belarus (Article 6). Refusal of state registration of an entrepreneur under the motives of expediency of his/her activities shall be inadmissible (part seven of Article 5). Point 1 of Temporary provision on procedure of granting the subjects of economic activities special permits (licences) for carrying out certain types of activities approved by Resolution of the Council of Ministers of the Republic of Belarus of 16 October 1991 No. 386 (in wording of Resolution of the Council of Ministers of the Republic of Belarus of 22 September 1992 No. 573) shall specify that the subjects to licensing shall be the types of activities which may do harm for the interests of the Republic of Belarus, for environment or put in danger public health. There are no circumstances which shall connect the necessity of protection of the interests of the Republic of Belarus, environment and public health with the quantity of chemist’s establishments.
Based on the aforementioned the Constitutional Court deems that the Ministry of Public Health shall have the right to specify optimum quantity of chemist’s establishments which are in state property. As for the limitation of the right to open chemist’s establishments, which are in private ownership, with their territorial location taking into account, is at variance with the Laws of the Republic of Belarus “On Public Health” and “On entrepreneur activities in the Republic of Belarus”.
Grounded on the abovestated and guided by Article 40, part one of Article 116 of the Constitution, Articles 7, 36, 38, 40, 401 of the Law “On the Constitutional Court of the Republic of Belarus” the Constitutional Court
RULED:
1. To emphasize that the Procedure of opening chemist’s shops, chemist’s stations (dispensary), chemist’s kiosks and chemist’s storehouses by economic entities irrespective of the forms of ownership in the territory of the Republic of Belarus which has been approved by Order of the Ministry of Public Health of the Republic of Belarus of 21 December 1998 No. 366 (with alterations and addenda made thereinto by Resolution of the Ministry of Public Health of the Republic of Belarus of 4 June 2001 No. 41), in part, specifying a quantitative limits for opening chemists establishments is at variance with the Laws of the Republic of Belarus “On Public Health” and “On entrepreneur activities in the Republic of Belarus”.
2. To propose the Ministry of Public Health of the Republic of Belarus to bring the given Procedure of opening chemist’s shops into line with the Laws of the Republic of Belarus and with the present Decision.
3. The present Decision shall come into legal force from the date of its adoption.
4. To publish the present Decision in accordance with legislation.
Presiding Officer —
Chairman of the
of the