The Constitutional Court found no 185 / 2017 Coll.
The Constitutional Court found of 3 May 2017 sp. zn.
Valid
185
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. ÚS 2 / 15 on 3 May 2017 in plenary composed of the President of the Court of Paul Rychetský and the Judges Louis David, Jaroslav Fenyk, Josef Fialy, Jan Filip, Jaromír Jirsy, Tomáš Lichovník, Jan Musil, Vladimir Sládeček, Radovan Sučánek, Kateřina Šimáčková, Vojtěho Šimíček (Judge of the Czech Republic), Milady Tomková, David Uhíří and Jiří Zemánek, on the proposals of the Municipal Court for Prague, in accordance with Article 95 (2) of the Constitution of the Czech Republic, and 3 of the Chamber of the Parliament of the Czech Republic as parties to the General Court of Procedure a), and to the General Court of Law on the Czech Republic, (a), (b), as a) as a) as a) of the Czech Republic of the Czech Republic, as a).
as follows:
I. The application for annulment of the provisions of Sections 2 (1) and 3 (1) and 2 (b) of Act No. 48 / 1997 Coll., on Public Health Insurance and on the amendment and addition of certain related laws, as amended by Act No. 261 / 2007 Coll., is rejected.
II. The remainder is rejected.
Reasons
Subject matter
1. By a proposal within the meaning of Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution) and Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court), received by the Constitutional Court on 23 January 2015, the Municipal Court in Prague (hereinafter referred to as the "applicant") sought the annulment of the provisions of Sections 2 and 3 of Act No. 48 / 1997 Coll., on Public Health Insurance and the amendment and amendment of certain related laws, as amended, (hereinafter referred to as the "Public Health Insurance Act."). The appellant considers that those legal provisions are inconsistent with Articles 1, 3 and 32 (1) and (2) of the Charter of Fundamental Rights and Freedoms ("the Charter '). The application for the annulment of the above provisions of the Act was made in connection with the administrative court proceedings held at the Municipal Court in Prague under sp. above. 10 Ad 18 / 2014. In the proceedings, applicant O. K. sought judicial review of the decision of the defendant General Health Insurance Corporation of the Czech Republic (hereinafter" the Czech Republic') of 24 June 2014 No. (hereinafter "the Czech Republic's RP ') No.
2. On 23 September 2015, the Constitutional Court received a proposal from the District Court for Prague 6 to repeal the provisions of Sections 2 and 3 of the Public Health Insurance Act. The contested legal provisions consider the District Court for Prague 6 to be contradictory to the first sentence of Article 1, Article 3 (1), Article 31, second sentence and Article 32 (1) and (2) of the Charter. The District Court for Prague 6 made an application in connection with the civil proceedings brought by him under sp. above. 53 C 20 / 2012 in the case of the applicant of the Institute for the Care of the Mother and Child, a contribution organization against defendant O. B. for payment of CZK 682 158 with accessories.
3. The motion of the District Court for Prague 6 was rejected by the order of the Constitutional Court of 3 November 2015 sp. zn. Pl. ÚS 24 / 15 (available at http: / / nalus.ujud.cz) in conjunction with § 43 (2) (b) of the Constitutional Court Act as inadmissible because of the impediment to litispendency. In accordance with Article 35 (2) of Act No 182 / 1993 Coll., on the Constitutional Court, the District Court for Prague 6 was granted the right to take part in the proceedings in the present case. de facto, it is the second petitioner. As already stated in the resolution's rejection, the Constitutional Court has examined the two proposals in full in the current proceedings.
Derogation of the contested provisions
4. The two above-mentioned courts challenge the provisions of Sections 2 and 3 of the Act on Public Health Insurance which define the personal scope of public health insurance in the Czech Republic and lay down the conditions for the creation and termination of participation in it. The text of the provisions under consideration is as follows:
5. Paragraph 2 of the Public Health Insurance Act:
"(1) Under this law they are insured by:
(a) persons resident in the Czech Republic;
(b) persons who do not have permanent residence in the Czech Republic if they are employees of an employer who has their registered office or permanent residence in the Czech Republic;
(hereinafter referred to as insured persons).
(2) For health insurance purposes, the employer is a legal or natural person who is the payer of income from dependent activities and functional benefits under special legislation, employs staff and has their registered office or permanent residence in the Czech Republic, as well as an organisational component of the state.
(3) Employment is for health insurance purposes the activity of an employee [Paragraph 5 (a)] from which the employer receives income from dependent activities and functional benefits taxed under special legislation.
(4) For the purposes of health insurance, the registered office of the employer shall be the registered office of the legal person, as well as the registered office of his or her organisational unit, which is registered in the Commercial Register or, where applicable, in another legally designated register, or is kept in a designated register with the competent authority in the Czech Republic, and the place of his or her permanent residence, or, where applicable, in the case of a foreign natural person, of his or her business.
(5) Health insurance excludes persons who are engaged in illegal work in the territory of the Czech Republic under Section 5 (e) (3) of the Employment Act, and persons who are not resident in the Czech Republic and who are active in the Czech Republic for employers enjoying diplomatic benefits and immunities, or for employers who are not established in the Czech Republic, and persons who are long-term resident abroad and who are not insured (Section 8 (4)). "
6. Paragraph 3 of the Public Health Insurance Act:
"(1) Health insurance is issued on:
(a) birth, if it is a permanent resident in the Czech Republic,
(b) when a person without a permanent residence in the Czech Republic became an employee [§ 5 (a)],
(c) acquisition of permanent residence in the Czech Republic.
(2) Health insurance shall expire on:
(a) the death of the insured person or his declaration of death;
(b) when a person without a permanent residence in the Czech Republic has ceased to be an employee [§ 5 (a)];
(c) termination of permanent residence in the Czech Republic. "
Summary of the City Court's proposal in Prague
7. On the grounds of the proposal and content of the attached judicial file of the Municipal Court in Prague sp. zn. 10 Ad 18 / 2014 The Constitutional Court found that the applicant, Ms O. K., was a Ukrainian citizen. It has been employed in the Czech Republic since 2008, the last to be granted a permit for employment due until 31 January 2013. During 2012 Mrs. O. K. became pregnant and on 17 December 2012 she became incapacitated due to a risk pregnancy. The employment relationship ended on 31 January 2013, when its employment permit expired [Paragraph 48 (3) (c) of the Labour Code]. Since she ceased to be an employee and did not have a permanent residence in the Czech Republic, on 31 January 2013 Mrs. O. K. 's health insurance expired under § 3 (2) (b) of Act No. 48 / 1997 Coll., on Public Health Insurance and on the amendment and addition of certain related laws.
8. Then Mrs. O. K. was born a child (son). At the date of birth of the child, Mrs. O. K. was staying in the Czech Republic on the basis of a long-term residence permit. Before 18 March 2013, she applied for a permanent residence permit pursuant to § 68 of Act No. 326 / 1999 Coll., on the residence of foreigners in the Czech Republic and on the amendment of certain laws, as amended, ("the Act on the residence of foreigners'); a permanent residence permit was issued to it on 19 June 2013.
9. On 23 September 2013, Ms O. K. made a request through her legal representative to the RP of the Czech Republic to determine the duration of public health insurance. This request was decided by the Regional Branch of Prague ZIP CR on 18 December 2013 by stating that the insurance relationship of Ms O. K. to ZIP CR and its participation in public health insurance ended on 31 January 2013. The decision was justified by the fact that the applicant did not meet any of the conditions laid down in the provisions of § 2 (1) of Act No. 48 / 1997 Coll., on Public Health Insurance and on the amendment and addition of certain related laws, as amended by Act No. 261 / 2007 Coll., laid down for the creation of insurance, and the relevant European regulations did not apply to it. Ms O. K. lodged an appeal against that decision, which was decided by the Director of the Office of the Czech Republic by cancelling the decision and returning the case to the institution of the first degree for reconsideration and decision. The Director of the Czech Ministry of Health has ordered the institution to carry out an additional inquiry into whether the conditions for the inclusion of Mrs. O. K. in the public health insurance system are fulfilled.
10. On 13 January 2014, the administrative body of the first stage issued a new decision (VZP-14- 00578036- S877), which again concluded that Ms O. K. 's participation in public health insurance expired on 31 January 2013. By decision of 24 June 2014 No. VZP - 14- 01417998- D981, the Director of the Czech Republic decided against the applicant in the order of the second decision of the institution of the first degree that it was rejected and confirmed by the contested decision pursuant to § 90 (5) of Act No. 500 / 2004 Coll., the administrative order.
11. By application of 16 September 2014, the applicant, Ms O. K., at the Municipal Court in Prague, sought the annulment of the above decision of the Director of the Czech Republic on 24 June 2014 no. VZP-14-01417998-D981 in an administrative court proceedings under sp. zn. 10 Ad 18 / 2014. It argued in particular that its exclusion from the public health insurance system was contrary to the constitutional order and international obligations of the Czech Republic.
12. The Municipal Court in Prague identified with this view the applicant's view on the unconstitutionality of the legislation applied, interrupted the procedure and appealed to the Constitutional Court for annulment of the contested provisions.
13. In the justification of his proposal, the Municipal Court in Prague reiterated that the applicant was in a situation where she had paid public health insurance premiums for several years, and when the insurance event (i.e. the need for childbirth care) was imminent, the insurance was terminated. The applicant, according to the applicant, had no way of maintaining its participation in public health insurance. It is not possible to place the burden on her that she was no longer employed as her employment ended in a situation where she was able to work as a result of a risk pregnancy. In this situation, it was almost impossible for her to find an employer who would have a job with her at a high level of pregnancy. Similarly, the negotiation of commercial health insurance was practically impossible in its case. At the same time, it could not reasonably be asked to return to its home state, even if its health allowed it. Thus, according to the words of the Municipal Court in Prague, the applicant did the only thing that she could do to obtain participation in public health insurance, thus applying for a permanent residence permit. This was done positively, but only after the applicant had given birth, and therefore had to pay for the health care associated with the birth itself.
14. The Municipal Court in Prague considers that the situation described above forces a pregnant woman not to have childbirth in the maternity ward, but to be exposed to the risks of domestic childbirth. In this context, it points out that the State (through the Ministry of Health) is strongly opposed to domestic childbirth and considers it a threat to the health and life of both the mother and the newborn child.
15. The applicant's case, according to the Municipal Court in Prague, does not constitute a unique exception, but there is a systemic lack of a definition of a range of persons participating in public health insurance. The same situation will apply not only to the cases of pregnant women, but also to foreigners who suffer an accident in the Czech Republic requiring a longer-term need for health care, with their work permit expired at the time of their incapacity for work.
16. According to the Municipal Court in Prague, the contested provisions of the Public Health Insurance Act are contradictory to Article 32 (1), Article 1 and Article 3 (1) of the Charter, as they result in discrimination against foreigners without justification in their ability to pay for health care from the public health insurance system. In fact, not an exceptional group of persons is obliged to pay public health insurance premiums without, in fact, being able to draw on the funds in the public health insurance, if necessary. The possibility of using public health insurance funds depends, in the view of the Municipal Court in Prague, on circumstances that are largely random. In his view, the solidarity of the public health insurance system is denied.
17. The Municipal Court in Prague is aware that the immediate abolition of Sections 2 and 3 of the Public Health Insurance Act would bring chaos into the public health insurance system. In his view, this risk can be faced by the Constitutional Court delaying the enforceability of its finding, leaving the legislature room to adopt a new regulation which will not suffer from the deficiencies described above, but which will also not open up participation in public health insurance to foreigners who would only want to make use of the Czech health system.
Summary of the motion of the District Court for Prague 6
18. The district court has filed a motion in connection with the proceedings brought by him under sp. zn. 53 C 20 / 2012 in the case of the plaintiff - Institute for the Care of the Mother and Child, based in Prague 4, a contribution organization against defendant O. B. for payment of CZK 682 158 with accessories. In the application, the designated contributory organisation sought the defendant's payment of the medical fee granted to her son D. B. from birth to the end of hospitalisation; the applicant has entered into a health care contract with the defendant.
19. As is apparent from the reasoning of the proposal and from the judicial file in question, the defendant O. B. is a Ukrainian citizen who, at the time of birth and hospitalisation of his son, was resident in the Czech Republic on the basis of a valid long-term residence permit. As a result of her employment, she was a participant in the public health insurance scheme under § 2 (1) (b) of the Public Health Insurance Act, from 1 October 2007 until 30 April 2008, when her employer signed her off as a taxpayer in public health insurance premiums.
20. For reasons of medical complications found at the end of pregnancy, the defendant was transferred to the Mother and Child Care Institute, where, in the situation of the imminent death of her child, she signed a health care contract (to be added, that it should have been the fifth pregnancy of the defendant who, in her words, "lost the child four times before, gave birth to a dead newborn child in the third and fourth cases"). The hospitalisation of underage D. B. was successful, but during its duration he was not himself involved in public health insurance and none of the commercial health insurance companies had any obligation to insure his medical expenses. The plaintiff's contribution organisation thus incurred costs of CZK 682 158, which is now enforced by the mother of the child who has undertaken to pay the cost of health care for her child in the health care contract concluded with the applicant.
21. The District Court considers that the situation described above is indicative of the unconstitutionality of the contested legal provisions. It underlines that the defendant participated in the public health insurance scheme at the time of the birth of her child in a situation where she was legally resident in the Czech Republic. Despite this, her child, born in the Czech Republic, did not participate in public health insurance, unlike children of citizens of the Czech Republic, who become members of public health insurance under the title of their citizenship and the acquisition of permanent residence by birth under the provisions of § 2 (1) (a) and § 3 (1) (a) of Act No. 48 / 1997 Coll., on public health insurance and on the amendment and addition of certain related laws, in conjunction with § 10 (3) of the First Act No. 133 / 2000 Coll., on the registration of residents and birth numbers and on the amendment of certain laws (Act on the registration of residents), as amended. According to the court appointed, this is not an isolated problem. As the district court adds, there is no legal obligation for commercial health insurance companies to conclude a contract on the insurance of medical expenses of newly born children requiring urgent health care during and after childbirth.
22. In the case pending by the Circuit Court, the defendant and other members of her family (the defendant living in the same household with his long-term unemployed spouse and his new-born son, brother and sister-in-law, with her brother and sister-in-law being partly financially dependent on the household), without any legal provision being infringed by the family members, are found without their fault in a distressing property situation, as they have become debtors of very high amounts representing the cost of health care which would otherwise be covered by a solidarity public health insurance scheme with the insured. The purpose of this system is therefore completely denied in the present case.
23. In conclusion, the District Court adds that the absence of public health insurance on the part of minor D. B. has caused the need to conclude a health care contract, from which the plaintiff's contribution organisation has brought its action. In the case of the definition of the heading of insured persons in a constitutional form, the cost of healthcare for a minor would be reimbursed by the relevant health insurance company and that contract and thus the subject of the dispute would not exist. The application of the contested legal standards is, according to the Court, one of the grounds for conclusion on the passive legitimacy of defendant O. B.
Observations of the parties
24. In accordance with Articles 42 (4) and 69 of the Law on the Constitutional Court, the Constitutional Court has sent a motion to initiate proceedings for the Chamber of Deputies of the Parliament of the Czech Republic, the Senate of the Parliament of the Czech Republic, the Government of the Czech Republic and the Ombudsman.
Statement by the Chamber of Deputies of the Parliament of the Czech Republic
25. The Chamber of Deputies, in accordance with established practice, limited itself to a description of the course of the legislative process, which led to the adoption of Act No. 48 / 1997 Coll., on Public Health Insurance and on the amendment and addition of certain related laws, and noted that the draft law passed a constitutional procedure prior to its declaration that it had been approved by both chambers of Parliament, signed by the relevant constitutional authorities and duly declared. It is for the Constitutional Court to examine the question of the unconstitutional nature of the contested provisions.
Statement by the Senate of the Parliament of the Czech Republic
26. The Senate stated that the text of the contested provision of § 2 of the Act on Public Health Insurance is the result of changes made by Act No. 220 / 2000 Coll., on the organisation and implementation of social security, as amended, and certain other laws, Act No. 261 / 2007 Coll., on the stabilisation of public budgets, and Act No. 1 / 2012 Coll., amending Act No. 435 / 2004 Coll., on employment, as amended, and other related laws. The text of the provisions of Section 3 of the Public Health Insurance Act is the result of the legislative process resulting from the adoption of the Public Health Insurance Act. The Senate described in detail the legislative procedure prior to the adoption of those standards and left it to the Constitutional Court to examine and rule on the application for annulment of the contested legislative provisions.
Statement by the Government of the Czech Republic
27. On 16 March 2015, the Government of the Czech Republic adopted Resolution 195 approving its entry into the proceedings before the Constitutional Court and, at the same time, imposing on the Minister for Human Rights, Equal Opportunities and Legislation to draw up, together with the Minister for Health, the Government's observations on the proposal.
28. First of all, the Government expressed doubts about the applicant's active legitimacy as well as doubts as to the general fulfilment of the assumptions of the substantive procedure. In this sense, it stated that the Municipal Court in Prague in the present case completely resigned from its obligation to interpret and apply the legislation in a constitutional manner, or to assess all the circumstances of the case under consideration. The Government considers that, if the employer refused to extend the employment contract to the applicant at the time of her pregnancy, such a procedure shows the nature of a breach of the prohibition of discrimination, and the applicant should therefore have requested the court to waive such discrimination and to remove the consequences of discriminatory action within the meaning of Article 10 (1) of the Act No. 198 / 2009 Coll., on equal treatment and on the legal means of protection against discrimination and on the amendment of certain laws (anti-discrimination law). In the view of the Government, the applicant for the contested decision is merely a result of discriminatory intervention, not its cause.
29. The Government considers that, at least in relation to the proposed annulment of the provisions of Sections 2 and 3 (1) and 2 (a) and (c) of the Act on Public Health Insurance, the Municipal Court in Prague is not actively authorised to file an application, and the proposal was therefore submitted by someone manifestly unjustified within the meaning of Section 43 (1) (c) of the Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 77 / 1998 Coll. The Government referred to the conclusions of the Constitutional Court expressed, for example, in the Resolution of 23 October 2000 (Pl. ÚS 39 / 2000 (U 39 / 20 SbNU 353) or in the finding of 28 February 2006 (Pl. ÚS 20 / 05) (N 47 / 40 SbNU 389; 252 / 2006 Sb.), according to which the condition of the court's design authorisation is fulfilled only if the law and / or its individual provisions, the application of which is to be immediate or necessary for its unavoidable application and not merely hypothetical application, are fulfilled.
30. The Government further noted that the contested legislation constitutes a legal provision adopted in the ordinary legislative process, which is in full compliance with Article 4 (2) of the Charter. This is a legitimate legal regulation which responds to the need to adjust the personal scope of public health insurance, in which the government does not see a breach of the prohibition of discrimination or a breach of the constitutional protection of parenthood or the guaranteed right to special care for a woman in pregnancy. The Government considers that the contested legislation does not discriminate against foreigners in their access to the possibility of paying for health care, because it also allows persons who are not citizens of the Czech Republic under the conditions of employment or permanent residence. The conditions laid down for participation in public health insurance are substantive and constitute the implementation of Article 41 of the Charter, which provides for the possibility to seek the above rights only within the limits of implementing laws.
31. The appellant's claim by the parties that the applicant cannot reasonably be required to return to its home State is rejected by the Government. It states that Czech legislation requires as one of the preconditions for the possibility of a stranger staying in the Czech Republic in order to ensure payment of possible health services. If such a condition is not met by a stranger, he may be requested to return to his home state. Even if a pregnant woman is not involved in public health insurance, the Czech legislation guarantees her adequate health care, since the health service provider cannot refuse to provide urgent care within the meaning of § 5 (1) (a) of Act No. 372 / 2011 Coll., on health services and the conditions under which they are provided (Health Services Act). The question of payment of these services is a secondary issue in such a situation between the provider and the patient.
32. The Government believes that a complete repeal of the contested legislation would threaten the collapse of the public health insurance system; the abolition of the provisions of Paragraph 3 (2) (b) of Act No. 48 / 1997 Coll., on Public Health Insurance and on the amendment and addition of certain related laws would abolish the possibility of the termination of public insurance for persons insured by employment. For the above reasons, the Government has proposed that the Constitutional Court reject or reject the application.
Observations of the Ombudsman
33. The Ombudsman ("the Ombudsman") entered the proceedings as an intervener on 23 February 2015; It was forwarded to the Constitutional Court on 17 April 2015. The protector stated that the case was one of the major problems of the current social security legislation in the area of access to health care for certain categories of foreigners in the Czech Republic, stressing that it has been seeking to address this problem for several years.
34. It described the current legislation on the scope of public health insurance in the Czech Republic and its availability for foreigners from countries outside the European Union (EU). It emphasised that several tens of thousands of foreigners who have long lived in the Czech Republic but do not fulfil the conditions of the Public Health Insurance Act, the Act on the residence of foreigners imposes an obligation to arrange health insurance for one of the commercial insurance companies. In its view, the commercial health insurance system is unable to fulfil its purpose in the long term. The insurance conditions of commercial insurance companies contain a large number of problematic elements (exclusions from insurance cover, waiting periods for the possibility of taking out insurance benefits, limits on the amount of insurance benefits, etc.); Moreover, insurance companies are not legally obliged to conclude an insurance contract, so a number of insurance companies have no chance of obtaining commercial health insurance at all. The debt for the healthcare provided, which is thus generated, is often incurred by individual health service providers, which, as a result, indirectly imposes a burden on the whole health system. The Protector pointed out that the current regulation has repeatedly been criticised by the control bodies of international human rights conventions and the opening of the public health insurance system excluded by categories of long-term foreigners, the Council of the Government of Human Rights, the Czech Medical Chamber, certain non-governmental non-profit organisations, the Association of Patients of the Czech Republic and part of hospitals.
35. On the case from which the present application arose, the appellant stated that the applicant had in fact entered into a situation where her free choice of circumstances of childbirth was limited. If, despite significant financial costs, she could afford to negotiate a special insurance scheme offered by one of the commercial health insurance companies at the time, it is not so certain that the insurance company would conclude an insurance contract with her in view of her risk of pregnancy. Thus, the applicant was referred to domestic childbirth or to its own payment of all the treatment associated with the childbirth. The cost of childbirth and postnatal health care is at least several thousand crowns, in case of health complications of the mother or child they can then move in the order of hundreds of thousands of crowns.
36. The Ombudsman believes that the exclusion of the applicant from public health insurance has infringed her right to the protection of private and family life within the meaning of Article 10 (2) of the Charter and Article 8 of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention '). It recalled that, according to the case law of the European Court of Human Rights, the concept of the right to family life also included the decision to become a parent, as well as the right to choose under which circumstances this would happen. Interventions in law under Article 8 of the Convention constitute the very existence of a legal provision which automatically excludes a wide range of foreigners from public health insurance. For some categories of foreigners, the impact of such legislation is not even appropriate, especially for those who contribute to the long term public health insurance system, for family members of working foreigners, or in general for foreigners who reside in the Czech Republic on the basis of an appropriate residence permit. In order to achieve the legitimate objective pursued by the legislation, a reasonable period of time may be provided for these categories of foreigners in the course of months after which they would become participants in the public health insurance scheme, which is equivalent to that in other EU Member States.
37. The Caretaker drew attention to the special care and protection guaranteed to pregnant women by Article 32 (2) of the Charter as well as to a number of provisions of international human rights treaties. That protection was, in its view, denied to the applicant. Furthermore, the Ombudsman stressed that the setting up of the public health insurance scheme would affect not only the applicant herself, but also her child, which could not in fact have been insured with a commercial health insurance company. In this context, the protector referred to the commitments made by the Czech Republic under the Convention on the Rights of the Child.
38. In addition to the above, the Ombudsman considers that the current legislation on access to public health insurance for foreigners constitutes a breach of the prohibition of discrimination guaranteed by Articles 1 and 3 (1) of the Charter and further regulated by a number of international human rights conventions as well as at the level of EU law.
39. Specifically, the Protector considers that the provision of § 2 (1) (a) of Act No. 48 / 1997 Coll., on Public Health Insurance and on the amendment and addition of certain related laws, constitutes direct discrimination on grounds of nationality. The condition of permanent residence as a precondition for entry into the public health insurance system, enshrined in the provision cited, is not, in its view, neutral as it explicitly refers to a type of residence in the territory and aims to exclude a part of foreign nationals from the scope of public health insurance. The criterion of permanent residence is directly linked to the discriminatory reason for "nationality," since in the case of foreigners, it is one of the types of residence permits on the territory of the Czech Republic which can be obtained, except for minor exceptions, not earlier than five years of permanent residence in the territory. As the Ombudsman stated, the preferential regime resulting from contractual obligations within the EU applies to citizens of EU Member States, their family members and foreigners from third countries who are resident in another EU Member State.
40. Condition of participation in public health insurance within the meaning of § 2 (1) (b) of Act No. 48 / 1997 Coll., on Public Health Insurance and on the amendment and amendment of certain related laws, as amended by Act No. 261 / 2007 Coll., according to the Protector, constitutes interim discrimination on grounds of nationality and sex. The Ombudsman considers that the exclusion of applicant O. K. from the health insurance scheme is directly contrary to Article 1 in conjunction with Article 12 of the Convention on the Elimination of All Forms of Discrimination against Women. Moreover, the contested provisions are contradictory to the provisions of the International Covenant on Economic, Social and Cultural Rights, which was also criticised by the UN Committee on Economic, Social and Cultural Rights.
41. The negative position in the intentions of assessing the discriminatory impact of the contested provisions, according to the appellant, lies in the very flat-rate inclusion of foreigners in the public health insurance system and in the consequences thereof. As the protector explains, the regulation contained in the Public Health Insurance Act is problematic because it does not distinguish between foreigners in a comparable position with citizens of the Czech Republic and foreigners who are not in a comparable position. The negative effects on a group of foreigners in a comparable position have an element of direct discrimination. The protector points out that when the position of an employed stranger and an employed citizen of the Czech Republic is compared, adverse treatment can be seen in the fact that the loss of employment involves automatic exclusion from the public health insurance system, regardless of the duration of the transitional stay and regardless of the period during which the alien contributed to the insurance scheme. An unemployed stranger is then in a significantly less favourable situation compared to an unemployed citizen because he is automatically outside the public health insurance system and is only linked to commercial health insurance.
42. If there is a cross-section discrimination on grounds of nationality and gender, the Ombudsman considers that Article 2 (1) (b), in conjunction with Article 3 (1) (b) of the Public Health Insurance Act, constitutes direct discrimination against female migrants as compared to male migrants, since for a employed female immigrant, pregnancy and maternity, as a result of her exclusion from the public health insurance scheme, while for a employed immigrant, the birth of a child does not mean any deterioration of her condition. Furthermore, the protector submits that discrimination on grounds of nationality and gender is one of the suspected grounds for discrimination, for which the freedom of the State is significantly limited as far as the possibility of legitimate and justifiable discrimination is concerned. Although the objective pursued by the contested legislation considers the protectors to be legitimate, it believes that, in view of the intensity of the intervention of the chosen solution, it is neither proportionate nor necessary.
43. Furthermore, the protector points to the contradiction between Article 3 of the Public Health Insurance Act and Article 4 of the Treaty between the Czech Republic and Ukraine on social security (No 29 / 2003 Coll. s..). While this Treaty does not explicitly establish the right to participate in public health insurance, Article 4 provides that the persons covered by the contract are to be treated as their own citizens when applying the legislation (concerning the social security sector) of each Contracting Party, unless otherwise provided for by the Treaty.
44. The current provisions of Sections 2 and 3 of the Public Health Insurance Act are, according to the Ombudsman, in a clear conflict with Article 12 of Directive (EC) No 2011 / 98 of the European Parliament and of the Council of 13 December 2011 on a uniform procedure for the processing of applications for a single residence and work permit in the territory of a Member State for third-country nationals and on a common set of rights of workers from third countries legally residing in a Member State.
45. In conclusion, the Ombudsman stated that it was in agreement with the City Court's proposal to abolish the contested provisions in Prague and proposed that the Constitutional Court should comply with the application.
Communication from the General Health Insurance Agency of the Czech Republic
46. The Czech Republic sent an unsolicited statement to the Constitutional Court dated 24 July 2015, in which it explained in detail why, in its view, the current legislation on participation in public health insurance is not contrary to the constitutional order. The Constitutional Court proposed to reject the application for annulment of the legislative provisions in question.
47. Public health insurance is designed as a general and compulsory insurance with a guarantee of implementation, which arises from the law on the basis of the fulfilment of general conditions regardless of the will of the insured person or health insurance company. It works on the principle of continuous financing, where the contribution is divided immediately and paid for in kind according to the immediate needs of the insured. The insured person is entitled to receive public health insurance only for as long as he is present. As this participation arises directly from the law, the health insurance company is not allowed to terminate the health insurance of an insured person who fulfils the legal conditions, even in the event of failure to fulfil his legal obligation to pay the insurance.
48. The Czech Republic pointed out that the contested legislation does not stand alone in the legal order but must be seen in the context of other legislation. In this context, it referred to the European legislation on social security, the provisions of Act No. 325 / 1999 Coll., on asylum, as amended, ("the Asylum Act ') and the Act on the residence of foreigners, which extend the personal scope of public health insurance.
49. It is necessary to distinguish strictly between the patient's right to health care and the patient's right to health care covered by public health insurance. The applicant's right to provide health services within the meaning of the Health Services Act was not infringed in the present case. The Health Services Act does not distinguish between patients covered by public health insurance and self-payers. Although a health service provider may reject a patient who is not insured by a health insurance company with which the provider does not have a contract under Section 48 (1) (c) of the Health Services Act, it may not do so under Section 48 (3) of the Health Services Act in the case of childbirth or of a patient to whom urgent care is to be provided because of a health condition immediately threatening his life or seriously threatening his health. Therefore, it must be rejected that the applicant's claim that its non-participation in public health insurance may lead to worse care and disadvantages for other women. In the present case, the applicant was not prevented from having access to health care, but could not have been covered only by public health insurance.
50. The applicant has not ceased to be insured as a result of her state of health, but as a result of not extending the employer's employment contract, which cannot be attributed to the health insurance undertaking or the public health insurance system itself. In this sense, the Czech Republic points out that the applicant would not have entered into that situation if it had concluded an indefinite contract with its employer. The conditions for participation in public health insurance should have been known from the outset, as should all persons subject to Czech legislation.
51. The constitutional guarantees of Article 31 of the Charter of Health of the Czech Republic state that the right to health care and health protection is one of the economic, social and cultural rights which are expressly specified by the relevant law and can only be sought on the basis of it. In accordance with Article 42 of the Charter, the rightholders of the right to free health care are only nationals of a higher standard of protection of rights than other persons. This is due, in particular, to the fact that public funds for providing health care are not unlimited, with the primary purpose of each State being the care of its own citizens. Personal and material restrictions on participation in public health insurance stem, among other things, from the need to ensure the economic functioning of the system and, as such, is constitutional.
52. If there is a alleged breach of Article 32 (2) of the Charter, the Czech Republic considers that this social right is not directly applicable and does not imply an obligation on the legislator to automatically include pregnant women in the public health insurance system. However, even if the contested legislation were to be contradictory to that Article of the Charter, it must be subjected to a rationality test in the framework of a constitutional review.
53. The Czech Republic is finally convinced that the contested legal provisions will also stand up from the point of view of non-discrimination, as all entities demand compliance with the same conditions in relation to the creation, duration or termination of participation in public health insurance. In the rest of its opinion, the Czech Republic further explained why the contested legislation does not, in its view, conflict with the European Social Charter, the Convention for the Protection of Human Rights and the Dignity of Human Being in relation to the Application of Biology and Medicine: the Convention on Human Rights and Biomedicine, the International Covenant on Economic, Social and Cultural Rights or the International Convention on the Elimination of All Forms of Racial Discrimination.
Opinion of the Czech Insurance Association
54. The Constitutional Court, in accordance with Article 42 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 77 / 1998 Coll., also requested the comments of the Czech Insurance Association (hereinafter referred to as "ČAP") on the proposals submitted, in particular in order to clarify the current practice of insurance companies in concluding contract health insurance in relation to pregnant women and newborns, the specification of the availability of contract health insurance for these groups of persons, as well as the definition of the conditions and limits of insurance benefits arising from public business conditions of insurance companies and insurance contracts.
55. ČAP is convinced that in the cases under examination there has been no breach of the right to health within the meaning of the first sentence of Article 31 of the Charter and that the cases from which the two drafts of the General Courts have arisen are not an example of a systemic deficiency, since not one of the women has made use of the possibility of concluding commercial health insurance for foreigners, which can be negotiated during pregnancy. ČAP pointed out the specificities of the business of insurance undertakings which consist of taking over insurance risks on the basis of concluded insurance contracts and providing insurance benefits on the basis of such contracts. In order for the insurance undertaking to be able to carry out the transfer of insurance risks, the insurance risk, i.e. the probability of the occurrence of an insurance event caused by an insurance risk, must be measurable and be valued by money. The claim of the Municipal Court in Prague that the situation in the present case could not be resolved by the negotiation of the commercial health insurance of foreigners, the CAP considers it misleading, stressing that the legal obligations of insurance companies are given not only by domestic law but also by Union law and do not allow the cost of pregnancy and maternity to lead to differences in the amount of premiums or benefits. ČAP stressed that the issue of foreign health insurance was regulated by the Act on the residence of foreigners. In the case of an application for a visa for a stay of more than 90 days, if applied for in the Czech Republic or for an extension of the period of stay in the Czech Republic, the insurance must be arranged within the scope of so-called comprehensive health care. This scope of health insurance according to ČAP corresponds to the insurance product most often referred to as "comprehensive health insurance for foreigners," with these insurance conditions being revised in the past by both the Czech National Bank and the Ministry of Interior and the Ministry of Health. In the insurance market in the Czech Republic there is currently an offer of insurance products covering similar health care as public health insurance, but there is also an offer for foreigners that goes beyond the scope of public health insurance care. As regards the insurance of women's foreigners during pregnancy, ČAP stated that insurance companies also offer the possibility of additional health care for newborns, which can be concluded during pregnancy. Women abroad have the possibility to have adequate private insurance, even if they are already pregnant. In the event that this insurance is valid, health care for the newborn is also covered. In conclusion, ČAP stated that private health insurance (or the supply of products of this type of insurance) is sufficient and available for all obliged persons, pregnant women and newborn children, including at least within the legal scope.
Oral proceedings
56. The Constitutional Court concluded that further clarification of the case could not be expected from oral proceedings and therefore, in accordance with Paragraph 44 of the Constitutional Court Act, it decided on the case without its regulation.
Terms and conditions of the formal assessment of the proposal
57. The Constitutional Court concluded that it was competent to discuss the application for annulment of the contested legal provisions and that the motions of the Municipal Court in Prague and the District Court for Prague 6 fulfilled all the statutory conditions of the proceedings. The General Court is entitled to submit an application for annulment of a law or its individual provisions in the context of its decision-making activities (Section 64 (3) of the Constitutional Court Act), where it concludes that the law to be applied in the resolution of the case is contrary to the constitutional order (Article 95 (2) of the Constitution). The so-called specific control of the standards, which is enshrined at the constitutional level by a quoted article of the Constitution, represents the judicial control of the constitutionality of the law (or its individual provision) to be applied in the discussion and decision of a particular case. The difference between the so-called abstract and specific control of standards lies only in whether the court has been actively authorised to bring an application, and the specific circumstances of the case discussed by the General Court in the "initiation procedure 'are not taken into account here. In order to assess the applicant's active legitimacy in the procedure on the specific control of standards, it is therefore necessary to answer the question which provisions of the law are to be applied in the procedure [cf. All decisions cited by the Constitutional Court are available in the database http: / / nalus.ujud.cz /]. In that regard, it is not only the hypothetical possibility of applying the contested legal provisions to proceedings before the General Court or their broader connection to the present case.
58. Therefore, the Constitutional Court may deal with an application for annulment of a legal provision if at least one of the courts concerned is actively authorised to do so. The nature of both initiation cases consists in assessing the personal extent of public health insurance. The two courts concerned must, in the course of the procedures described above, examine whether specific persons were involved in the public health insurance scheme at the time they were granted health care.
59. The subject-matter of the administrative proceedings before the Municipal Court in Prague is the action sought by applicant O. K. for a reassessment of the decisions of the administrative authorities which found that her participation in public health insurance had expired on the date of termination of her employment. The proposing general court is therefore obliged to assess whether the applicant, i.e. pregnant woman-stranger from a non-EU country, residing in the Czech Republic on the basis of a long-term residence permit, which in the past contributed to the public health insurance scheme, by virtue of § 2 (1) (b) of Act No. 48 / 1997 Coll., on public health insurance and on the modification and addition of certain related laws, had continued to participate in the scheme even after the end of its employment. The contested provision of § 2 (1) of Act No. 48 / 1997 Coll., on Public Health Insurance and amending and supplementing certain related laws, as amended by Act No. 261 / 2007 Coll., lays down a general rule which determines which persons are involved in the public health insurance system. The applicant did not fall within the legal list of insured persons. It is therefore necessary for the outcome of the proceedings before the General Court to assess the constitutionality of Section 2 (1) of Act No. 48 / 1997 Coll., on Public Health Insurance and on the amendment and addition of certain related laws, as amended by Act No. 261 / 2007 Coll., from the point of view of whether the list contained therein does not allow the applicant (or other persons in the same situation) to be included in the public health insurance scheme is unconstitutional. At the same time, the question of the constitutionality of the related provision of Section 3 (2) (b) of the Public Health Insurance Act and of amending and supplementing certain related laws must be answered, according to which the applicant's participation in public health insurance expired on the date on which he ceased to be an employee.
60. The District Court for Prague 6 is to decide, in civil proceedings, on the action of a medical institution to pay the amount of medical care provided to the minor child of defendant O. B. Although a health care contract was negotiated between the health service provider and the defendant, the question of whether the defendant's child should have been involved in the public health insurance system must be primarily examined. The district court will therefore have to examine whether the conditions for participation in the public health insurance of a child without the permanent residence of a woman-stranger from a country outside the EU, residing in the Czech Republic on the basis of a long-term residence permit, which, at the time of the birth of the child, was itself involved in the public health insurance scheme under § 2 paragraph 1 (b) of Act No. 48 / 1997 Coll., on public health insurance and amending and supplementing certain related laws, as amended by Act No. 261 / 2007 Coll. Also in this case, it is essential to answer the question whether the provision of § 2 (1) of Act No. 48 / 1997 Coll., as amended by Act No. 261 / 2007 Coll., in which the defendant's child is denied participation in public health insurance, is not unconstitutional. For the same reasons, it must be established at the same time whether the anti-constitutional loophole in the law is caused by Article 3 (1) of the Act on Public Health Insurance and by amending and supplementing certain related laws, which rules out the creation of public health insurance for the defendant's child.
61. As can be seen from the above, the two courts concerned refer to the Constitutional Court in the belief that its decision could achieve a different legal assessment of the case from that which they would have had to achieve by applying the existing legal regulation which they consider to be unconstitutional. The two courts will necessarily apply the provisions of Sections 2 (1) and 3 (1) and 2 (b) of Act No. 48 / 1997 Coll., on Public Health Insurance and on the amendment and addition of certain related laws, as amended by Act No. 261 / 2007 Coll., defining the personal scope of public health insurance and certain conditions for its creation and termination. In order to make proposals for the annulment of those provisions, these courts are actively legitimised and, to this extent, the Constitutional Court has therefore dealt with them meritantly.
62. As regards the remaining parts of the legal provisions under appeal, the Constitutional Court concludes that neither of the two courts will apply. In the case of the provisions of § 2 (2), (3) and (4) of the Public Health Insurance Act, these are legal definitions which have not been directly applied in the present case; Nor does the argument of the courts suggest otherwise. Paragraph 2 (5) of the Public Health Insurance Act provides for a special scheme for selected groups of persons excluded from public health insurance. This adjustment is not in any way contradicted by any of the proposals. As regards the provisions of § 3 (2) (a) and (c) of Act No. 48 / 1997 Coll., on Public Health Insurance and on the amendment and addition of certain related laws, as amended by Act No. 200 / 2015 Coll., this provides for other ways of the death of public health insurance (death of an insured person or death declaration, termination of permanent residence). However, for these legal reasons, the disappearance of public health insurance did not occur in either of the cases under consideration and therefore these provisions will not be applied by general courts. Therefore, in relation to the provisions of § 2 (2), (3), (4) and (5) and of § 3 (2) (a) and (c) of the Law on Public Health Insurance, the Constitutional Court has no choice but to consider the proposal as submitted by a person manifestly unjustified.
Constitutional conformity of the legislative process
63. In accordance with Article 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the Constitutional Court must first of all consider whether the contested legal provisions have been adopted and issued within the limits of the Constitution laid down by competence and the constitutional procedure.
64. The Constitutional Court has verified the progress of the process of adopting those provisions for which the general courts are actively legitimate in relation to the above cases. It was based on observations submitted by the Chamber of Deputies and the Senate of the Parliament of the Czech Republic, as well as on publicly available electronic resources (stenograms from meetings of both chambers of Parliament, resolutions and parliamentary and Senate press, freely available at http: / / www.psp.cz and http: / / www.senat.cz /).
65. The valid and effective text of the provisions of Sections 3 (1) and 2 (b) of the Act on Public Health Insurance and amending and supplementing certain related laws which are proposed for annulment is the result of the legislative process resulting from the adoption of Act No. 48 / 1997 Coll., on Public Health Insurance and on the amendment and addition of certain related laws; Paragraph 2 (1) of the Act on Public Health Insurance and on the amendment and addition of certain related laws is the result of amendments made by Act No. 261 / 2007 Coll., on the stabilisation of public budgets.
66. Act No. 48 / 1997 Coll., on Public Health Insurance and on the amendment and addition of certain related laws, according to the statements of both chambers of Parliament, was adopted by the constitutionally prescribed legislative process, signed by the relevant constitutional authorities and duly declared. The Government Bill (House Press No. 98 / 0) was approved on 26 February 1997, of the 192 Members present, 152 voted for it, 17 against it. After the Chamber of Deputies referred the Senate Bill on 27 February 1997, the Senate discussed it at its second meeting on 7 March 1997 and expressed its willingness not to deal with it by resolution 1997 / 31. The Act was signed by the President of the Republic on 14 March 1997 and by the Prime Minister on 17 March 1997. On 28 March 1997 the law was published in the Collection of Laws in the amount of 16 under the number 48 / 1997 Coll.
67. The constitutionality of the procedure for the adoption of Act No. 261 / 2007 Coll., on the stabilisation of public budgets, which amended the provisions of § 2 (1) (b) of the Act on Public Health Insurance and on the amendment and addition of certain related laws, was already assessed and discussed by the Constitutional Court in proceedings under sp. zn.
68. It can thus be summarised that the contested legal provisions were adopted in a constitutionally consistent manner. That is why the Constitutional Court has undertaken to assess their content compliance with the constitutional order.
Regulation of the personal scope of public health insurance
69. It is appropriate to define at least briefly the subject matter of the contested legislation and its context at least before the Constitutional Court considers the contested provisions in view of their potential infringement of fundamental rights and freedoms.
70. Public health insurance system within the meaning of the Public Health Insurance Act is the main source of health care funding provided by providers of health services in the Czech Republic. The guarantee of the functioning of this system is a state which, above all, implements its positive commitment under Article 31 of the Charter, which requires it to provide its citizens with free health care on the basis of public health insurance and guarantee everyone the right to health protection. Public health insurance is based on the principle of solidarity.
71. Participation in the public health insurance scheme follows directly from the law establishing the range of persons participating in the public health insurance scheme as well as the conditions for the creation and termination of participation in public health insurance. For the duration of his or her participation in this system, the person shall have the right to receive free of charge the health care covered by him or her. If the person concerned does not comply with the legal conditions for participation in public health insurance, he / she shall be able to arrange contractual insurance for one of the commercial health insurance companies or to pay for the healthcare provided directly from his / her funds.
72. The personal scope of public health insurance is defined by the provisions of Section 2 of the Public Health Insurance Act. According to him, participants in public health insurance are persons with permanent residence in the Czech Republic and foreigners without permanent residence who are employed by an employer who has its registered office or permanent residence in the Czech Republic. However, the range of persons who may be covered by the public health insurance scheme is not fully exhausted. The Asylum Act extends the range of persons receiving health care on the basis of public health insurance to applicants for international protection and their children born in the Czech Republic, to foreigners who have been granted a visa for the purpose of residence and to their children born in the Czech Republic (§ 88 of the Asylum Act), to persons enjoying supplementary protection (§ 53c of the Asylum Act) or to foreigners who have submitted a voluntary return request (§ 54a (2) of the Asylum Act). Also persons who have been granted asylum have permanent residence in the territory under Section 76 of the Asylum Act during the period of validity of the decision granting asylum, and are, in this regard, involved in the public health insurance scheme.
73. If they are citizens of EU Member States and their family members, their participation in public health insurance depends on the text of the Union provisions governing the coordination of social security systems. For example, citizens of EU Member States who engage in gainful activities in the Czech Republic, whether as employees or self-employed persons, and their non-provision by family members without regard to their nationality, may participate in public health insurance [see Regulation (EC) No 883 / 2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems; Regulation (EC) No 987 / 2009 of the European Parliament and of the Council of 16 September 2009 laying down detailed rules for the application of Regulation (EC) No 883 / 2004 on the coordination of social security systems). Unlike foreigners from third countries, a citizen of an EU Member State who has become a member of a public health insurance scheme in the Czech Republic, this participation will not end without further termination of employment (or termination of a gainful activity) but on the date on which it ceases to be subject to Czech legislation (cf. Article 11 of Regulation No 883 / 2004). The scope of the Regulations cited has also been extended to persons from third countries legally migrating between Member States by Regulation (EU) No 1231 / 2010 of the European Parliament and of the Council of 24 November 2010 extending the scope of Regulation (EC) No 883 / 2004 and of Regulation (EC) No 987 / 2009 to nationals of third countries which are not yet covered by those Regulations solely because of their nationality.
74. However, the Constitutional Court is also aware of the tendency to strengthen the integration of third-country workers into the system of access to the social systems of the Member States of residence, as was later expressed in Directive 2011 / 98 / EC of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single residence and work permit in the territory of a Member State for third-country nationals and on a common set of rights of workers from third countries legally residing in a Member State. The aim is "to further develop a coherent immigration policy, to reduce the difference in rights enjoyed by Union citizens and third-country nationals who legally work in a Member State... [a] to define areas in which equality of treatment is ensured '(point 19 of the preamble), and, in respect of social security benefits, to apply also to workers admitted to a Member State directly from a third country', but should not confer more rights on those workers than third-country nationals in situations of cross-border (i.e. intra-Union) element (point 24 of the preamble). In so doing," each Member State shall lay down the conditions under which social security benefits are granted and the amount of such benefits and their duration 'and shall ensure "compliance with Union law' (point 26 of the preamble). The right (workers from third countries legally residing in a Member State) to equal treatment may be limited in this area but may not affect workers from third countries who are already employed or who have been employed for at least six months and who are registered as unemployed [Article 12 (2) (b)]. This protection does not therefore cover the situation in which the employment of a worker has ended after more than six months, but the worker has not been registered as unemployed at the relevant time. Such a conclusion is undoubtedly supported by the interpretation of the provisions of this Directive in the light of point 26 above.
75. Foreigners who do not meet the conditions for participation in public health insurance have the possibility and at the same time the obligation to enter into commercial insurance. The provision of commercial health insurance is governed by Act No. 277 / 2009 Coll., on Insurance, as amended, and is subject to the relevant provisions of Act No. 89 / 2012 Coll., Civil Code.
Substantial assessment of proposals
76. As is provided for in the content of the two proposals, the infringement of Article 32 (1) and (2), in conjunction with Article 3 (1) of the Charter, in breach of the principle that parenthood and family are protected by law and the special protection of children and adolescents is guaranteed, in conjunction with the prohibition of discrimination, even if these claims by the applicants are not supported by relevant arguments.
77. In addition, the Constitutional Court states that the circumstances of either of the two "initiation cases' do not indicate a possible direct violation of the right to the protection of parenthood and family, as is apparent from the present case-law of the Constitutional Court. According to it, [for example, the finding of sp. zn. IV. ÚS 257 / 05 of 26 January 2006 (N 26 / 40 SbNU 211)] that" the systematic inclusion of this right in the category of economic and social rights must necessarily be reflected in the interpretation of this right, not only as the rights of parents and children not only to interfere with the rule of law in the care of the family, but also in such a way as to provide specific protection for such care of the state. The care and upbringing of the child presupposes the provision of material and non-material (emotional, psychosocial, cultural etc.) conditions for the child to develop in the natural family environment all his or her personal skills and options that ultimately lead to adequate socialization of the child. In other words, it is the right of both the child and the childcare parent to provide special protection to the State. "The Constitutional Court further stated that the protection of family life is interpreted (mainly, not entirely) as a right of a negative nature by [finding sp. zn. These relationships are the most natural expression of human identity, and the law in democratic and free society must respect their existence. The meaning and nature of family relations and family coexistence are not primarily legal; the law merely grants protection for their real existence. This protection cannot then be ensured solely by the obligation to refrain from certain public intervention. At the same time, the State is obliged to adopt legislation guaranteeing the legal recognition of family relations and defining their content in relations between family members and third parties. '
78. In the present case, the Constitutional Court therefore considers that the infringement of Article 32 (1) of the Charter by the contested provisions of the Public Health Insurance Act could not have occurred. The fact that the appellants were not included in public health insurance did not in any way manifest themselves in their right to lead a family life and in the right to parenthood, as no one intervened in these rights.
79. Unconstitutionality is not seen by the Constitutional Court, nor in any way contrary to Article 32 (2) of the Charter, according to which special care, protection in working relations and appropriate working conditions are guaranteed to a woman in pregnancy. In this regard, too, the contested legal provisions will stand up because, by their nature, they do not relate at all to labour relations and special care for pregnant women in relation to the provision of adequate health services is, inter alia, regulated by the Health Services Act (see also below), which provides for the obligation of the health service provider to receive and treat the uninsured person in the event of childbirth. In any event, however, this Article cannot be interpreted so widely that the provision of "special care 'would necessarily also include free care.
80. The Constitutional Court therefore dealt with the alleged infringement of the right to health (Article 31, first sentence of the Charter).
81. In particular, it should be noted that the right to health concerns a number of areas of the functioning of the company which, as a result, make the level of health of its population conditional. The State is responsible for ensuring and fulfilling the right to health, and it is therefore also up to it to take adequate measures to that end. It does so by creating conditions for the wide availability of medical care and improving all aspects of external living conditions [see the find of 23 September 2008 sp. zn. Pl. ÚS 11 / 08 (N 155 / 50 SbNU 365), the find of 27 September 2006 sp. zn. The right to health thus results from a number of positive obligations of the State (in particular the organizational nature), whether they are preventive, hygienic, control or other obligations (e.g. Winter, J. in: Wagner, E., Šiměl, V., Langášek, T., Pospíšil, I. et al. Charter of Fundamental Rights and Freedoms: comment. Praha: Wolters Kluwer, 2012, str. 648.). The primary positive commitment of the State is to adopt appropriate legislative arrangements that will anchor the law and create the necessary legislative framework to ensure it in practice. In addition, it also provides for certain other obligations, consisting, on the one hand, of a negative obligation on the State to refrain from intervening in the health of its citizens and, on the other, of the State to protect individuals against such interference by third parties.
82. The Constitutional Court considers that part of the State's positive obligations under Article 31 of the first sentence of the Charter is to ensure a functioning health protection system available to everyone, which includes a system of available health care. Similarly, the interpretation of the right to health in Article 12 of the International Covenant on Economic, Social and Cultural Rights (No 120 / 1976 Coll.), which states in the first paragraph that states "recognise the right of everyone to achieve the highest achievable level of physical and mental health '. At European level, the right to health is guaranteed primarily by Article 11 of the European Social Charter (No 14 / 2000 Coll. s. s.).
83. Also, the Convention for the Protection of Human Rights and the Dignity of a Human Being in the Application of Biology and Medicine: the Convention on Human Rights and Biomedicine (No 96 / 2001 Coll., hereinafter referred to as "the Convention on Human Rights and Biomedicine") emphasises equal access to health care, as Article 3 lays down the obligation of the Contracting Parties, "bearing in mind health needs and available resources, to take appropriate measures to ensure equal access to health care of appropriate quality within their jurisdiction." Access to health care must be based on the principle of equality under this Regulation without unjustified discrimination. In doing so, the Contracting States are obliged to take action to achieve this objective with regard to the resources available to them (see the explanatory report to the Convention on Human Rights and Biomedicine of 4 April 1997, available on the website http: / / www.coe.int / en / web / conventions / full- list / - / conventions / treats / 164).
84. Selected groups are also guaranteed health protection in other international contract documents. The most important commitments of the Czech Republic under the Convention on the Rights of the Child (No 104 / 1991 Coll.) and the Convention on the Elimination of All Forms of Discrimination against Women (No 62 / 1987 Coll.) are for the proposals now under consideration. Pursuant to Article 24 (1) of the Convention on the Rights of the Child, the Contracting States recognise the right of each child to reach the most achievable level of health and the use of rehabilitation and treatment facilities; they are obliged to seek to ensure that no child is deprived of their right to access such medical services. Pursuant to Article 12 of the Convention on the Elimination of All Forms of Discrimination against Women, States shall provide all women with appropriate services in connection with pregnancy, six Sundays and postpartum periods, free of charge as necessary, as well as adequate nutrition during pregnancy and breastfeeding.
85. On the basis of the above above, the Constitutional Court notes, first of all, that the above mentioned international obligations of the Czech Republic do not entail the obligation to provide free health care to foreigners, but only respect and guarantee their right to health protection, including in the sense of establishing a system of available health care. However, closer conditions for its provision are left to national legislation.
86. Article 31 of the Charter appears to be the basic reference criterion for assessing the rationality of the proposals submitted. This article reads: "Everyone has the right to health protection. Citizens shall be entitled to free health care and medical supplies under the conditions laid down by law under public insurance. '
87. It is so obvious from the content of the article cited that the right to health protection within the meaning of Article 31 of the first sentence of the Charter is a public subjective right belonging to everyone. The second sentence then - only for citizens - also provides for the right to free health care on the basis of public insurance. It is so obvious that the legislator explicitly differentiates between everyone (i.e. also a foreigner or an apothecary), on the one hand, and public citizens, on the other hand, when everyone is guaranteed the right to health protection, and therefore the inalienable duty of the State is to provide available and effective medical care. Therefore, if there is a need to provide urgent care or other exceptional circumstances, the obligation of the health service provider to receive and treat the non-insured person is also enshrined at the level of the Health Services Act (Section 48 (3) of the Health Services Act). A completely different issue, however, is its validity, which by constitutional order is expressly guaranteed only to the citizens of the Czech Republic.
88. Therefore, in terms of the scope of the constitutional guarantees, the difference between the right to free health care within the meaning of Article 31 of the second Charter and the right to health protection under Article 31 of the first Charter cannot be covered, as the appellants do in their proposals in their implications. The bearer of the constitutional right to free health care based on public insurance is only a citizen of the Czech Republic, while everyone is the bearer of the right to health protection. In relation to its national citizens, constitutional order therefore prescribes a specific measure by which the State is to ensure the financial availability of health care, which is to ensure participation in the public health insurance system. However, the state does not expressly impose this constitutional obligation on other groups of persons (foreigners). Thus, these persons are not directly demonstrated by the constitutionally guaranteed right to free health care covered by the public health insurance scheme, but only by generally formulated guarantees of the right to health protection.
89. The diversity of the group of holders of the two fundamental rights is a reflection of the legitimate intention of the legislator to give greater protection to persons who, in terms of redistribution of limited funds for health care and medical supplies, are in a special relationship with the State because of their civil status. In the opinion of the Constitutional Court, it can be concluded from the Article 31 of the Charter that the right to free health care under the sentence of the second provision cited may be regarded as a special treatment in relation to the generally formulated health protection right under the sentence of the first provision. The guarantees of the first sentence constitute a minimum standard of the right to health, which must be guaranteed to everyone and which is closely linked to the constitutionally protected value of human dignity (cf. Article 1, first sentence of the Charter) and the right to life (Article 6 (1) of the Charter). The special regulation of the right to free health care therefore provides a higher standard of basic law for public citizens, but does not preclude the State from providing similar protection to certain other persons, if the legislator considers this desirable for various reasons. Therefore, the legislator also expressly states that the rights referred to in Article 31 The Charter can only be invoked within the limits of the laws implementing it (see Article 41 (1) of the Charter).
90. Moreover, there is nothing and priori unusual or even suspect in terms of a general prohibition of discrimination arising from the appellant referred to in Article 3 (1) of the Charter that distinguishes the State's obligations under social rights towards different groups of the population, defined on the basis of citizenship or other criteria demonstrating the closeness of a person's relationship to a particular State. Social security systems [to which according to international standards - cf. International Labour Organisation Convention 102 (Convention on Minimum Social Security Standard, No. 461 / 1991 Coll.), European Social Security Code (No. 90 / 2001 Coll. p.) - also include health care] have a sovereign territorial character; reflect the economic, political, social and cultural conditions of each country. There are no two states with identical social security systems (social protection). The territorial nature of social protection systems and their diversity are the reason why persons migrating between states are, on principle, not guaranteed without further guarantee that the national system of the "host country" will immediately accept them to its personal extent without any requirements. It cannot be seen that the various parts of the social protection system have different sensitivity to possible abuses in the context of so-called social tourism. These issues are then addressed by international coordination-type contracts; only such an instrument of international law will ensure equality in treatment for migrants (in the broadest sense). (As regards the specific situation arising from membership of the European Union, see paragraph 73) The fact that social rights are not only derived from the post of protection of human dignity cannot be ignored, but they are also based on solidarity across the population. Man is naturally part of society as a group of people, and solidarity within these groups is a fundamental value for the functioning of society. A prosperous society cannot function without the faith of all its members in the possibility of social permeability. A certain degree of social cohesion is the basis of a safe sense of public space for all, and thus has a direct link to the degree of freedom of all citizens.
91. The obligations of the State from social rights are therefore derived from the nature of the relationship between the individual and the State and the rest of the company. The state's strongest commitments to its own citizens and the weakest towards the people visiting the country, i.e. tourists, will be. It is then a matter for the legislator (see Article 41 (1) of the Charter) to further differentiate the position of other persons depending on their residence status in the Czech Republic. The level of solidarity is thus logically greater with people permanently established in the territory (permanent residents) and is relatively high with people with long-term residents who also live in the Czech Republic for a longer period of time or work and thus participate in the economic and social functioning of the state. On the contrary, for example, for persons with a short-stay visa (tourists), it may be the responsibility of the State to provide them with minimal health care available and may, for example, be limited to establishing the condition that foreigners, when applying for a visa and when entering the territory, prove that they have sufficient and valid travel insurance or means to pay for any necessary medical care.
92. The Constitutional Court recalls in this context that, therefore, the health insurance of foreigners also differs in particular according to their length of stay. Short-term stays within 90 days are regulated by directly applicable EU legislation. Long-term stays are regulated by the Foreign residence law. In the case of short-stay stays, visa applicants shall demonstrate that they have sufficient and valid travel insurance covering all the costs that could arise during their stay or stays on the territory of the Member States in connection with repatriation for medical reasons or with emergency medical care, emergency hospital care or death with a minimum insurance cover of EUR 30 000, in accordance with Article 15 of Regulation (EC) No 810 / 2009 of the European Parliament and of the Council of 13 July 2009 on the Community Code on Visa.
93. Pursuant to Regulation (EU) No 2016 / 399 of the European Parliament and of the Council of 9 March 2016 establishing a Union Code on rules governing the movement of persons across borders (Schengen Borders Code), it is one of the conditions for entry into the territory of the Member States that the alien has sufficient means of subsistence for both the intended stay and return to his / her country of origin or transit to a third country where his / her acceptance is guaranteed, or is able to obtain such means legally [Article 6 (1) (c)].
94. The Act on the residence of foreigners regulates the conditions for granting long-term visas and long-term residence permits. One of the conditions for granting these permits is that the alien has agreed health insurance (see § 31 (7) for a long-stay visa, § 46 (1) for a long-term stay, § 42b (5) for a long-term stay for the purpose of cohabitation of the family and in agreement with other types of long-term residence). According to these provisions, a stranger is obliged to arrange travel health insurance which complies with the conditions set out in § 180j of the Aliens residence law. Under the provisions of Paragraph 180j, an alien must negotiate an insurance covering the costs which he is obliged to pay during his stay in the territory in the event of the provision of the necessary and urgent medical care, including the costs associated with the transfer or the death of the alien in the event of the transfer of his physical remains to the State in which he owns the travel document, or to another State in which he is authorised to stay. The amount of the agreed premium payment limit per insurance event shall be at least EUR 60 000 without any participation of the insured in the above costs.
95. Under Section 180j (5) of the Travel Health Insurance Act, in the case of a visa application for a stay of more than 90 days, if it is requested in the territory, or an extension of the period of stay in the territory may be agreed only with an insurance undertaking authorised to operate such insurance within the territory and must be agreed within the scope of comprehensive healthcare. Comprehensive health care under Section 180j (7) of the Aliens' Residence Act means health care provided to an insured contract provider of the insurer's health services without direct payment of the cost of the treatment to the insured in order to maintain his health from before the conclusion of the insurance contract. This insurance shall not exclude preventive or dispensary healthcare or health care related to the pregnancy of the insured mother and the birth of her child.
96. The Constitutional Court thus concludes that Article 31 of the First Charter contains the right of everyone to ensure the availability of health care. This is the responsibility of the State, in particular, to adopt legislative arrangements to ensure that this right is fulfilled. However, the specific obligations of the State under this right are different for persons with different residence status. Also, unlike citizens who are explicitly guaranteed by the Charter to participate in public health insurance, in relation to persons without citizenship, the legislature is not in any way limited at constitutional level by the parties to the availability of health care, i.e. whether it allows them access to the public health insurance system or whether they choose other systemic measures (e.g. ensuring the possibility of entering into commercial insurance under adequate conditions, creating a special fund, etc.).
97. As is provided from the above, although Article 31 of the Charter, repeatedly mentioned above, distinguishes access to free healthcare according to the state-citizen criterion, the implementing legislation in this respect is significantly more accommodating in relation to foreigners (or aphids). It follows from the content of the contested provisions of Sections 2 and 3 of the Public Health Insurance Act that the existence of citizenship is not a decisive condition for access to public health insurance, but a permanent residence in the Czech Republic, or the seat or permanent residence of the employer with whom these persons are employed. It is so obvious that the basic dividing criterion is in fact not the question of the existence of citizenship, but the actual concentration of the individual and the State in the form of residence or work on its territory.
98. The Constitutional Court therefore sees the provisions of Article 31, first sentence, of the Charter merely as an unprogressive basis for guaranteeing the right to health. This means, in particular, that the very fact that free health care is constitutionally guaranteed only by state citizens does not mean that the legislator is unable to admit it to other groups of people. After all, as mentioned above, the Public Health Insurance Act expressly does so in relation to, for example, applicants for international protection or foreigners who have been granted a certificate of continued residence in the Czech Republic [Paragraph 7 (1) (p)]. In other words, the legislator cannot come into conflict with the constitutional standard if he admits to a greater standard of protection of rights beyond the minimum constitutional guarantees. On the other hand, the legislator cannot violate this constitutional standard even if it does not and does not grant more rights to certain groups of persons than would be directly (in the present case) under Article 31 of the Charter.
99. However, it must be added that, in the context of the Convention on the Protection of Human Rights and Fundamental Freedoms, although it is essential to distinguish between access to citizens and foreigners, this distinction must nevertheless be sustained in confrontation with Article 14 thereof, which prohibits any discrimination. However, the Constitutional Court is convinced that the contested legal regulation does not contradict even Article 14 of the Convention, since, as mentioned above, it does not, in fact, distinguish between public citizens and foreigners, but the decisive criterion for entering the public health insurance system is the intensity of the relationship with the Czech Republic, which manifests itself most often in permanent residence in its territory. The Constitutional Court considers that this circumstance is not only entirely reasonable but also normal in international comparison.
100. In addition, it can also be noted that the obligation to provide an equivalent status to persons who have Ukrainian nationality and do not pursue a professional activity in the territory of the Czech Republic or have a permanent residence, does not result from concluded international coordination-type contracts (Treaty between the Czech Republic and Ukraine on social security No 29 / 2003 Coll. s. as an instrument foreseen by Article 12 (4) of the European Social Charter No 14 / 2000 Coll. does not include health care in the material extent, the European Interim Agreement on Social Security excluding the systems of old age, invalidity and survivors of 114 / 2000 Coll., which contains health insurance in the material extent, is not applicable to the relationship with Ukraine). It can thus be summarised that, in fact, the two proposals submitted do not oppose the existing form of the public health insurance scheme, but only advocate its modification to include cases such as those discussed by the proposing courts in both "initiation procedures'. However, as seen in this way, the Constitutional Court must recall the principle of self-restraint when intervening in areas which clearly represent areas reserved for political decision-making. Although the Constitutional Court therefore sees a difficult situation in which the two foreign parties involved in the" initiation 'proceedings, which resulted in the submissions of the proposals currently under discussion by the General Courts, consider that this is a procedure for checking the standards in which compliance with the proposals would have general effects in the form of the annulment of the contested legal provisions, it does not distinguish the specific circumstances of the individual persons concerned.
101. In fact, as is apparent from the parts of the contested provisions currently under consideration, there is no reasonable reason at all to consider their abolition in the sense that their content would be something which is unacceptable under the rule of law, or which would infringe specific constitutional fundamental rights. The content of these provisions is merely the definition of the personal scope of health insurance (§ 2) for persons who are resident in the Czech Republic and for persons who do not have such permanent residence, but are employees of an employer who has their registered office or permanent residence in the Czech Republic. Paragraph 3 of Act No. 48 / 1997 Coll., on Public Health Insurance and on the amendment and addition of certain related laws, as amended by Act No. 200 / 2015 Coll., then merely regulates the creation and disappearance of health insurance.
102. Nor does the Constitutional Court itself find any circumstance which reasonably calls into question the principle that disabled persons with permanent residence or persons employed with permanent residence or registered office in the Czech Republic are insured. In other words, the appellants do not actually challenge the legal provisions cited in terms of what is contained in them, but in terms of what is not contained in them. Therefore, if the Constitutional Court had complied with the proposal, it could have done so not on the grounds that the contested legal provisions contained something unconstitutional but only because the legislator had neglected to include another group of persons in them.
103. However in the past, the Constitutional Court has already allowed the possibility of intervening in a derogatory manner even in the case of the so-called omission of the legislator ["gaps in the law," see, for example, the finding of sp. zn. Pl. ÚS 83 / 06 of 12.3.2008 (N 55 / 48 SbNU 629; 116 / 2008 Coll.)], there have always been cases where it found that the omission was unconstitutional, for example in the form of a constitutionally unacceptable inequality. However, nothing similar can be said in the present case, as some inequality in the status of "everyone" and "citizens" for free health care stems directly from constitutional order and not from the implementing law.
104. From this point of view, the Constitutional Court also points out that it is a judicial authority for the protection of constitutionality (Article 83 of the Constitution), and it is therefore not the purpose of its decision-making activities to initiate or enter into a political debate on the appropriateness of the existing personal extent of health insurance and therefore only refers to the so-called political question document [see also, for example, the finding of the SPR 50 / 06 ÚS of 20.11.2007 (N 196 / 47 SbNU 557; 18 / 2008 Coll.)]. In this sense, it is also highly questionable whether the appellant's alleged unconstitutionality should at all be seen in the existing legal definition of the personal extent of health insurance.
105. In any event, however, the Constitutional Court fully respects the fact that the task of finding a solution that would eliminate in individual cases the existing risks arising from the existing personal scope of public health insurance above the necessary standard laid down in Article 31 of the Charter is a matter for the legislator and not the Constitutional Court.
106. However, from the point of view of the position of the Constitutional Court, it is crucial that, if the legislator has not extended the personal scope of public health insurance in the manner required by the applicants, it has not infringed Articles 31 and 32 of the Charter, nor has it infringed any other rule of constitutional order or obligations arising for the Czech Republic under European Union law or international treaties.
Conclusion
107. In the light of the above, the Constitutional Court concluded that there were no grounds for the annulment of the contested provisions of the Act on Public Health Insurance and therefore the proposal under the provisions of § 70 (2) of Act No 182 / 1993 Coll., on the Constitutional Court, partially rejected and partially rejected, pursuant to § 43 (1) (c) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended by Law No 77 / 1998 Coll.
108. The Obiter dictum Constitutional Court points out that the situation of children of foreigners born on the territory of the Czech Republic was addressed by the Supreme Court in the judgment of 22 September 2016 in Case 33 Cdo 2039 / 2015, which concluded that the fiction of permanent residence since birth under the Law on the residence of foreigners applies not only to applications for permanent residence for a child whose legal representative has permanent residence but also to the requests of parents with long-term residence (who may apply for a permanent residence for example for humanitarian reasons).
President of the Constitutional Court:
JUDr. Rychetský v. r.
In accordance with Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, Judge Ludvík David, Jaroslav Fenyk, Jan Musil, Pavel Rychetský, Radovan Sukánek, Kateřina Šimáková and David Uhíř took a different position.
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Regulation Information
| Citation | The Constitutional Court found no 185 / 2017 Coll., on the application for annulment of Sections 2 and 3 of Act No. 48 / 1997 Coll., on Public Health Insurance and on the amendment and addition of certain related laws, as amended |
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| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 29.06.2017 |
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| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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