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.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, G.B. Shishko, V.Z. Shuklin, has examined on the grounds of Article 40, 59, part one of Article 116 and part one of Article 125 of the Constitution of the Republic of Belarus motion of the Procurator-General of the Republic of Belarus concerning position of the Constitutional Court on the issues of distribution of medicines by chemist's institutions and enterprises of the system of the Ministry of Public Health under prescriptions of medical personnel of remedial and prevention institutions of departmental belonging.

The motion specifies that, due to introduction by the Ministry of Public Health of distribution of medicines on contractual grounds by state chemist's institutions and enterprises of the system of the Ministry of Public Health under prescriptions of medical personnel of remedial and prevention institutions of departmental belonging, there are instances of refusal of distribution of medicines by the specified institutions and enterprises in cases, where prescriptions have been written by the medical personnel of departmental policlinics.

In particular, because of non-fulfilment of contractual duties by military and medical service of the Committee of State Security of the Republic of Belarus (KGB) on the payment of the cost of medicines distributed under free and privileged prescriptions of KGB policlinic, Republican Unitary Enterprise (RUP) "Belpharmacy" has suspended distribution of medicines for citizens till clearing liabilities. In the opinion of the Procurator-General those actions are illegal since they interfere with the rights of invalids, participants of the Great Patriotic War, other persons equated to them in privileges who shall receive medicines under prescriptions of medical personnel, and that is guaranteed by effective legislation.

The Ministry of Health in its reply to the complaint of an invalid of the Great Patriotic War on the issue of refusal him of distribution of medicines by chemist's institutions and enterprises of the system of the Ministry of Public Health under prescriptions of KGB policlinic has made reference to the right of chemist's establishments to distribute free medicine for servicemen, persons retired from military service, members of their families, for invalids from among servicemen of KGB bodies, invalids of the Great Patriotic War included on the grounds of contracts concluded by medical KGB establishments with chemist's institutions and enterprises of the system of the Ministry of Public Health under prescriptions of those establishments in case of absence of necessary medicines in KGB chemist's shops or in cases of issue of privileged prescriptions for that category of population by remedial and prevention institutions of the system of the Ministry of Public Health of the Republic of Belarus.

At the same time, the Ministry of Public Health has informed that since there is no contract between RUP "Belpharmacy" and military and medical service of KGB for 2001 for free distribution of medicines under prescriptions of KGB policlinic, that gives no possibility to renew distribution of medicines by chemist's institutions of the system of the Ministry of Public Health for the citizens of the specidied category.

The Ministry of Public Health considers that actions of those who work at state chemist's establishments and enterprises and administration of RUP "Belpharmacy" do not interfere in that situation with the rights of the category of citizens in question, since their medicinal security and health service are violated by medical service of KGB which is responsible for that in accordance with legislation.

Having analyzed the norms of the Constitution, the Law "On health protection", other enforceable enactments which regulate the issues of medicinal security of citizens, as well as practice of their application, the Constitutional Court notes the following. The procedure of medical security of servicemen, retired persons from military service, members of their families, invalids of the Great Patriotic War, invalids from among servicemen shall be specified by Provision on medical and sanatorium health resort facilities for servicemen, retired persons from military service, members of their families, invalids of the Great Patriotic War, invalids from among servicemen approved by Resolution of the Council of Ministers of the Republic of Belarus of 2 December 1993 No. 814 "On medical security of servicemen, retired persons from military service, members of their families, invalids of the Great Patriotic War, invalids from among servicemen" with further alterations and addenda (hereafter - Provision).

According to point 29 of the Provision the persons specified in points 3 and 4 of the Provision shall have the right to free receipt of medical preparations at the cost of funds of the Ministry of Defence, the Ministry of Internal Affairs, Committee of State Security, the State Committee of Frontier Troops, Security Service of the President of the Republic of Belarus in the procedure stipulated by the legislation of the Republic of Belarus. According to Point 30 of the Provision free distribution of medicines shall be carried out from the chemist's shops of military medical establishments, as well as from the chemist's shops of the Ministry of Public Health with further presentation of accounts for payment of the cost of medicines to military medical establishments which have written a prescription. Prescription for free receipt of medicines shall be written in special forms by medical personnel of military medical establishments, and in localities, where there is no military medical establishments, - by medical personnel of central regions policlinics. Payment of the cost of medicines, issued free of charge by the chemist's shops of the Ministry of Public Health, shall be made by medical services of the state bodies who have military units which are creating in accordance with effective legislation (point 32 of the Provision).

According to Resolution of the Council of Ministers of 2 December 1993 No. 814 the Committee of State Security and the Ministry of Public Health by their joint Order of 29 September 1994 No. 107/218 "On medical security of servicemen, retired persons from military service, members of their families, invalids of the Great Patriotic War, invalids from among servicemen of the bodies of the Committee of State Security of the Republic of Belarus" have instructed general directors of production associations "Pharmacy" to guarantee supply of distribution of medicines from the chemist's shops of the Ministry of Public Health under free prescriptions issued by remedial and prevention establishments of KGB and of the Ministry of Public Health in case of their absence in KGB chemist's shops; to submit monthly payable registers for KGB military medical service and to KGB departments in oblasts where medical personnel of military medical services have written prescriptions for free distribution of medicines. In those instances, where registers have been written in remedial prevention establishments of the Ministry of Public Health, payable registers should be submitted to military medical service of KGB and to KGB departments in oblasts according to the list specified in Appendix No. 2 to the given Order.

Head of financial and economic department of KGB has been ordered to envisage allocation of monetary funds for military medical service of KGB, military medical services of the departments of KGB in oblasts for payment of the cost of medicines distributing under free prescriptions (points 3-5 of the Order).

Similar norms are also contained in joint Order of the Minister of Defence and the Minister of Public Health of 20 April 1994 No. 154/88 "On medical security of servicemen, retired persons from military service, members of their families, invalids of the Great Patriotic War and invalids from among servicemen". Order of the Ministry of Public Health of 1 November 1994 No. 238 has instructed general directors of production associations "Pharmacy" to secure free distribution of medicines for invalids and participants of the Great Patriotic War, as well as for persons equated to them in privileges under prescriptions of medical personnel in case of out-patient treatment in any chemist's shop irrespective of the fact where a prescription has been written by medical personnel of remedial prevention establishments located in the territory of the Republic of Belarus (the given Order has been found to be null and void by Resolution of the Ministry of Public Health of 6 December 2000 No. 53).

Meanwhile, in practice, relations between remedial and prevention establishments of departmental belonging and chemist's establishments and enterprises of the Ministry of Public Health have become to be legalized in relevant contracts with specification of concrete conditions of payments, which are different from the procedure established by the Government, for medicines distributing for citizens free of charge or under favourable conditions. Thus, point 2 of Contract No. 10/KGB of 1 January 2000 for distribution and payment of the cost of medicines for population under privileged conditions and free of charge, concluded by KGB military and medical service and BelRPP (Belarusian Republican Production Enterprise) "Pharmacy", has envisaged that KGB military and medical service shall make advance payment in the fifth and fifteenth day of a payable month, and final settlement shall be made after the twenty fifth day on the ground of the register of AP-9 form (point 2.1).

The cost of medicines distributed after the twenty fifth day shall be included in the payroll of the month following the accounting one (point 2.2). Checking of mutual settlements shall be made every month in the fifth day of the next month at the latest (point 2.3). Point 4.1 of the Contract has envisaged, if KGB military and medical service during a month make no payments according to point 2.1 of the Contract, BelRPP "Pharmacy" shall have the right to discontinue distribution of goods under free and privileged prescriptions.

Thus, the right of invalids, participants of the Great Patriotic War, other persons equated to them in privileges to free receipt of medicines in chemist's establishments and at enterprises of the Ministry of Public Health under prescriptions of medical personnel of a departmental policlinic has become conditional upon factual pay of the cost of medicines. That procedure of free or privileged distribution of medicines by chemist's establishments and enterprises of the Ministry of Public Health under prescriptions of medical personnel of departmental remedial and prevention establishments is still effective and, in particular, that is confirmed in letter of RUP "Belpharmacy" of 21 November 2000 No. 12-03/2448 to KGB military and medical service which informs that RUP "Belpharmacy" since 1 January 2001 shall change over to planned payments, and in case of failure to pay off liabilities under privileged prescriptions, there will be no contract for 2001 and distribution of medicaments under privileged prescriptions of KGB policlinic will be subject to termination. According to availiable information ther is no such a contract for 2001.

The Constitutional Court deems that having stipulated the right of invalids, participants of the Great Patriotic War, other persons equated to them in privileges to free receipt of medicines, the State shall be obliged by force of the requirements of Articles 21 and 59 of the Constitution to secure the possibility for realization of that right, effectiveness of the proclaimed in the Constitution principle, that the individual, his rights, freedoms and guarantees for their attainment manifest the supreme goal and value of society and the State (Article 2). Safeguarding the rights and freedoms of citizens of the Republic of Belarus shall be the supreme goal of the State. The State shall guarantee the rights and freedoms of citizens of Belarus enshrined in the Constitution, the laws and the specified international obligations of the State.

Thus, Article 45 of the Constitution guarantees citizens of the Republic of Belarus the right to health care, including free tretment at state health-care establishments. The State shall make health care facilities accessible to all of its citizens. In pursuance of Article 47 of the Constitution the State shall display particular concern for veterans of war and labour, as well as for those who lost their health in the defence of national and public interests. CIS Convention on the human rights and fundamental freedoms of 26 May 1995 (effective since 11 August 1998 after giving by the Republic of Belarus of notification with confirmation of fulfilment of necessary domestic procedures) stipulates that with a view to secure effectual exercise of the right to health protection Contracting Parties are bound to take directly or in co-operation with state or private organizations relevant measures aimed, in particular, to eliminate causes of worsened health in maximum possible extent (point "a" of Article 15).

By specifying peculiarities of realization and protection of any rights and freedoms of citizens, state bodies, in the opinion of the Constitutional Court, under the requirements of Article 59 of the Constitution, should proceed from the estimation of the significance of this or that right in the whole system of the rights and freedoms and adhere to such a balanced approach in order to turn the measures taken by those bodies, officials towards maximum full exercise of the rights of citizens guaranteed by the State, especially those, which are attached priority.

Based on the aforestated the Constitutional Court has come to the conclusion, that the established by the Provision procedure for security with medicines of servicemen, persons retired from military service, members of their families, invalids of the Great Patriotic War, invalids from among servicemen in accordance with which distribution of medicines from chemist's establishments and enterprises of the Ministry of Public Health should be carried out with further submissions of accounts for pay of the cost of medicines to military medical establishments which have written prescription, shall be in conformity with the Constitution, its principles and norms, as the procedure directed to priority protection of the most important values safeguarded by the Constitution and the laws of the Republic of Belarus, where life and health of an individual are of priority significance.

In the opinion of the Constitutional Court under market economy conditions contracts shall be the main legal form for determination of relations of parties on establishment, alterations or termination of civil rights and obligations. Contracts shall make it possible to secure maximum proper fulfilment of undertaken obligations, to protect one's rights and lawful interests in case of violation of contract terms. However, determination of those conditions, consequences of their non-fulfilment should not violate requirements of effective legislation, guaranteed by the State rights of the relevant categories of citizens to free or privileged receipt of medicines.

According to part three of Article 2 of the Civil Code parties of civil legal relations shall obtain and carry out their civil rights of their own free will and in their interests. They are free in the assertion of their rights and obligations on the ground of a contract, as well as in determination of any conditions of a contract which are in conformity with the legislation. At the same time, in pursuance of requirements of point 1 of Article 392 of the Civil Code a contract should meet obligatory for its parties rules specified by the legislation. Article 3 of the Civil Code shall include in the civil legislation acts of ministries which contain the norms of civil law under the condition, that they have been issued in instances and within the frames of legislative acts, orders of the President of the Republic of Belarus and resolutions of the Government of the Republic of Belarus. In case of collision (discrepancy) of the acts of civil legislation there shall be applied rules envisaged by the given Article, as well as the rules specified by the Law "On enforceable legal acts of the Republic of Belarus". Article 10 of the Law in question stipulates, in particular, that resolutions of the Council of Ministers of the Republic of Belarus shall have higher legal force than enforceable legal acts of the ministries.

In that connection the Constitutional Court deems that the given procedure of free or privileged distribution of medicines by chemist's establishments and enterprises of the Ministry of Public Health under prescriptions of medical personnel of departmental remedial prevention establishments is at variance with points 29 - 32 of the Provision, since that procedure violates the rights of citizens envisaged by the legislation, first of all, the rights of invalids, participants of the Great Patriotic War, other categories of citizens granting them by the Laws "On veterans", "On social protection of invalids in the Republic of Belarus", "On social protection of citizens suffered from the catastrophe on Chernobyl nuclear power station" and by other and, therefore, by force of Articles 21 and 59 of the Constitution guaranteed by the State. The Constitutional Court also pays attention to Resolution of the Ministry of Public Health of 5 September 2000 No. 39 "On improvement of organization of medical, medicinal and sanatorium health-resort facilities of invalids and participants of the Great Patriotic War, as well as persons equated to them in privileges", which has approved the Provision on the procedure of distribution of medicines for out-patient treatment of invalids and participants of the Great Patriotic War, as well as persons equated to them in privileges, point 4 of the Provision envisages that distribution of medicines and products for medical use for the given category of citizens shall be carried out in the quantity not more than it is specified in a prescription by submission of a document for confirmation of the right to free receipt in any state chemist's shop regardless of the locality of a remedial preventive establishment of the system of the Ministry of Public Health of the Republic of Belarus which has written the prescription.

Thus, distribution of medicines under prescriptions of medical personnel of departmental remedial preventive establishments has not been stipulated in that Provision, but the given gap to a certain extent has been fill in by point 7 of the Rules for distribution of medicines from chemist's establishments and enterprises approved by Resolution of the Ministry of Public Health of 6 December 2000 No. 53.

In the opinion of the Constitutional Court, since the Provision on the procedure of distribution for out-patient treatment of invalids and participants of the Great Patriotic War, as well as persons equated to them in privileges, shall have comprehensive nature and concern the distribution of medicines for the specified categories of citizens by both remedial prevention establishments not only of the system of the Ministry of Public Health, the procedure of securing with medicines under prescriptions of medical personnel of departmental remedial prevention establishments should be also envisaged in the specified Provision.

Based on the aforestated and guided by Article 40, 59, part one of Article 116 of the Constitution, by Articles 7, 11, 36, 38, 40, 40¹ of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court

RULED:

1. To find that the approved by Resolution of the Council of Ministers of the Republic of Belarus of 2 December 1993 No. 814 the Provision on medical and sanatorium health resort facilities for servicemen, retired persons from military service, members of their families, invalids of the Great Patriotic War, invalids from among servicemen which envisages free distribution of medicines for the specified categories of citizens from the chemist's shops of the Ministry of Public Health with further submission of accounts for payment of the cost of medicines to military medical establishments which have written a prescription, to be in conformity with the Constitution and the laws of the Republic of Belarus as the Provision aimed at safeguarding of the rights of citizens of the Republic of Belarus and as of a priority significance and as the supreme goal of the State. In that connection, it shall be noted that the procedure in practice where security of participants of the Great Patriotic War, other persons equated to them in privileges with medicines under prescriptions of medical personnel of remedial prevention establishments of departmental belonging shall depend upon conclusion of contracts with chemist's establishments and with enterprises of the Ministry of Public Health, as well as upon fulfilment of contractual obligations by departmental military and medical services shall be at variance with the requirements of point 30 of the specified Provision.

2. To propose the Council of Ministers of the Republic of Belarus to take measures directed towards the improvement of that procedure of issue of medicines for participants of the Great Patriotic War, other persons equated to the in privileges, bearing in mind both safeguarding of the rights of those persons guaranteed by the State and the protection of lawful interests of chemist's establishments and enterprises of the system of the Ministry of Public Health which carry out distribution of medicines for participants of the Great Patriotic War, other persons equated to them in privileges under prescriptions of medical personnel of remedial prevention establishments of departmental belonging (in case of their absence in departmental chemist's establishments).

3. The present Decision shall come into legal force from the date of its adoption.

4. To publish the present Decision in accordance with effective legislation.

Presiding Officer —

Chairman of the Constitutional Court

of the Republic of Belarus                                                                                               G.A. Vasilevich