Found at the Constitutional Court of the Czech Republic No. 206 / 1996 Coll.
Findings of the Constitutional Court of the Czech Republic of 10 July 1996 concerning the application for annulment of certain provisions of Act No. 20 / 1966 Coll., on the care of people, as amended, and the Act of the Czech National Council No. 550 / 1991 Coll., on General Health Insurance, as amended, and the Health Regulations issued by the Government of the Czech Republic Decree No. 216 / 1992 Coll., as amended, on the reimbursement of medicines and medical devices, as amended
Valid
The Constitutional Tribunal found
Text versions:
01.08.1996
206
FIND
Constitutional Court of the Czech Republic
On behalf of the Czech Republic
The Constitutional Court of the Czech Republic decided on 10 July 1996 in plenary on a proposal from a group of 43 Members of the Chamber of Deputies of the Parliament of the Czech Republic to cancel:
a) § 11 paragraph 4 of Act No. 20 / 1966 Coll., on the care of the health of the people, as amended by the Act of the Czech National Council No. 548 / 1991 Coll.,
b) § 1, § 2 paragraphs 2 and 3 and § 13 paragraphs 3 and 5 of the Czech National Council Act No. 550 / 1991 Coll., on General Health Insurance, as amended by Acts No. 161 / 1993 Coll. and No. 59 / 1995 Coll.,
c) Health Regulations issued by Decree of the Government of the Czech Republic No. 216 / 1992 Coll., as amended by Decree of the Government of the Czech Republic No. 50 / 1993 Coll. and Decree of the Government No. 149 / 1994 Coll.,
d) Decree of the Ministry of Health of the Czech Republic No. 467 / 1992 Coll., on health care provided for remuneration, as amended by Decree No. 155 / 1993 Coll., and
e) Decree of the Ministry of Health of the Czech Republic No. 426 / 1992 Coll., on the reimbursement of medicines and medical devices, as amended by Decree No. 150 / 1994 Coll.,
as follows:
(a) Article 11 (4) of Act No. 20 / 1966 Coll., on the care of the health of the people, as amended,
b) § 1, § 2 paragraphs 2 and 3 and § 13 paragraphs 3 and 5 of the Czech National Council Act No. 550 / 1991 Coll., on General Health Insurance, as amended,
c) Health Regulations issued by Decree of the Government of the Czech Republic No. 216 / 1992 Coll., as amended,
d) Decree of the Ministry of Health of the Czech Republic No. 467 / 1992 Coll., on health care provided for remuneration, as amended, and
e) Decree of the Ministry of Health of the Czech Republic No. 426 / 1992 Coll., on the reimbursement of medicines and medical devices, as amended,
is deleted.
The feasibility of this finding shall be postponed until 1.4.1997.
Reason
By the proposal reached by the Constitutional Court of the Czech Republic on 31 October 1995, the applicants seek the annulment of the provisions of the above laws, which impose on the Government of the Czech Republic and the Ministry of Health of the Czech Republic to issue legislation for the implementation of the Act ČNR No. 550 / 1991 Coll., on general health insurance, as amended. They also propose the repeal of the proposed sublegal legislation, the source of which is the Government of the Czech Republic and the Ministry of Health of the Czech Republic. The appellants take the view that the legal provisions in question and the statutory provisions in question are unconstitutional, and consider that they are unconstitutional in contravention of Articles 2 (2), 4 (1) and (2), 31 and 41 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter) and 2 (4) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution).
In the proposal, they indicate that the limits of the constitutional right to free health care under public insurance, as provided for in Article 31 of the Charter, can be established exclusively by law and not by other statutory legislation. Nor can it be done by regulation of the Government, even if the Government of the Czech Republic is entitled under Article 78 of the Constitution to issue regulations for the implementation of the law and within its limits, even without express legal authorisation. However, this legislative power of the Government, as stated in the proposal, must not be exercised in the field of legal relations and in the regulation of matters which, under the special constitutional law which is the Charter (Article 3 of the Constitution), may only be governed by law.
The applicants further point out that Article 31 of the Charter guarantees all citizens the fundamental right to free healthcare. Therefore, the conditions for its application and the limits within which a citizen may seek it must be laid down in the law, especially when the citizen's right to free provision of health care has changed to his obligation to provide financial compensation for health care directly or indirectly defined by statutory law.
However, obligations may be imposed only on the basis of the law and within its limits and with respect to fundamental rights and freedoms (Article 4 (1) of the Charter), which was also not fulfilled.
The appellants further state that, pursuant to Article 31 of the Charter, the organisational basis of this constitutional law is based on public insurance. Public insurance was regulated by Act No. 550 / 1991 Coll., as amended by Act No. 592 / 1992 Coll., No. 10 / 1993 Coll., No. 15 / 1993 Coll., Act No. 161 / 1993 Coll., No. 324 / 1993 Coll., No. 241 / 1994 Coll., No. 59 / 1995 Coll. and Act No. 149 / 1996 Coll. of 25.4.1996, which took effect on 1.7.1996 amending the contested provision § 13 (3) by deleting the second sentence of that provision. The original provision of Paragraph 1 of the Act provided for general health insurance so that the necessary health care can be provided free of charge, to the extent provided for by the Law and the Health Regulations. Law amendment No 161 / 1993 Coll. and the new Law No 59 / 1995 Coll. abandoned the idea of the fundamental right to free health care and fully or partially covered by health insurance was introduced. The appellants argue that the General Health Insurance Act itself does not define the content and extent of health care fully or partially paid by precise standards, but that it leaves this distinction to the regulation of the statutory legislation (government regulation). If § 2 (2) of the ČNR Act No. 550 / 1991 Coll., as amended by its Supplementary Rules, only makes a general distinction between this care and
(a) the nature of the disability; and
(b) the amount of financial resources to cover the care;
is the second condition contrary to the Charter which does not make the provision of health care conditional on the results of the economic activities of health insurance companies. Both of the above conditions (distinguishing terms) are further vague and not of a normative nature.
As regards the Health Regulations, which was not issued under the terms of the General Health Insurance Act under Article 2 (2) of the General Health Insurance Act, but on the basis of the constitutional delegation under Article 78 of the Constitution, its original wording was based on the authorisation to determine the scope of the health care needed free of charge and the conditions for its provision. Following a change in the concept of health care provision, the government, by its Regulation No. 149 / 1994 Coll. transferred the obligation to provide health care from the State to the relevant health insurance company, which, according to the volume of financial resources and the point assessment of health performance, either fully or partially covers the healthcare provided.
Since the Health Regulations and the Health Care Regulations provided for remuneration and for the reimbursement of medicines and medical devices form a comprehensive composition, they are not sufficient, according to the applicants, to delete only individual provisions and therefore propose the repeal of this legislation as a whole on 1 October 1996.
The applicants also point out the obligation of the Czech Republic to respect the right of everyone to achieve the maximum achievable level of physical and mental health, as is apparent from Article 12 (1) of the International Covenant on Economic, Social and Cultural Rights, published under No 120 / 1976 Coll.
The Chamber of Deputies of the Parliament of the Czech Republic sent a statement by letter of its President, PhDr. Milan Uhde, dated 30 November 1995, to the Constitutional Court, in which it first focused on the evaluation of Article 31 of the Charter. It states that the Charter calculates fundamental human rights and freedoms in Articles 5 to 16 and also in Section 2 of Title 2 of the Charter, which is entitled "Human rights and fundamental freedoms' (Articles 4 to 23). They do not include the right to health protection and therefore this right falls under Article 4 (1) of the Charter. According to the wording of this Article, obligations may be imposed only under the law and within its limits; of which it is imported that they may be provided for by law in so far as such legislation has been issued in accordance with the relevant law, with its authorisation and within its limits. The same is confirmed by Article 41 (1) of the Charter. As regards Article 12 of the International Covenant on Economic, Social and Cultural Rights, nor can it be inferred from the fact that the fulfilment of these obligations would have to be carried out only by direct regulation in the law.
The statement further states that neither Article 31 of the Charter nor the provisions of the International Covenant cited above give rise to a generally valid right of citizens to receive free health care but only to free health care under the conditions laid down by the law or the implementing regulation for its implementation and within its limits. Under these conditions, the amount of financial resources for health care may also be taken into account.
Act No. 20 / 1966 Coll., as amended, in § 11 (4) contains an authorisation for a closer definition of healthcare for full or partial remuneration. The Act No. 550 / 1991 Coll., as amended, provides that the Health Code is mandatory for all health insurance companies (not only for all health insurance companies, as stated in the proposal), so that it can be concluded that it also obliges other legal or natural persons.
The Ministry of Health of the Czech Republic, by letter of 9 January 1996 to the Minister of Health of the Czech Republic, considers the proposal to be a matter of whether the statutory provisions mentioned in the proposal are contrary to Article 31 of the Charter. It follows from the statement that the right to free health care is not a fundamental human right. This conclusion is based on the fact that the Charter only classifies fundamental rights as those rights set out in Title II of the First Charter. Therefore, Article 4 (2) of the Charter cannot be invoked in this respect. If the appellants invoke Article 41 (1) of the Charter in their proposal, they completely disregard the fact that the word 'limits' in which citizens can claim constitutional law under Article 31 of the Charter does not relate to the law itself but to the right to seek it.
In the evaluation of the ČNR Act No. 550 / 1991 Coll., as amended, it is stated that the Act defines the scope of health care covered by general health insurance, in its § 2 paragraphs 1, 2 and 4, by defining the content of the right to free health care in both positive and negative terms.
The Act cited also contains an authorisation for the Government to establish, by its regulation, a health care scheme fully and partially covered by general health insurance and contains guidelines for the Government to distinguish healthcare according to two legal criteria:
(a) the nature of the disability; and
(b) the volume of funds.
The second criterion is based on the fact that the public (general health) insurance scheme is limited to the amount of funds that are obtained under the obligation to pay general health insurance premiums (Act No 592 / 1992 Coll., as amended). However, this is not the same as that stated by the applicants that the health care provided should be conditional on the results of the economic activities of health insurance companies. If the applicants conclude from the Decree of the Ministry of Health of the Czech Republic No. 426 / 1992 Coll., that it regulates the obligation to participate financially in health care, it is incorrect, since the obligation of the insured person to pay part of the costs of health care is provided for by the Act No. 550 / 1991 Coll. in § 11 (n).
The Constitutional Court also requested an opinion from the Government of the Czech Republic. On 7 April 1996, the Government of the Czech Republic sent the following opinion:
In the view of the Government, in general cases where it is entrusted to modify a given matrix by means of a government regulation, the government's regulation must always be within the limits of a law from which it must not deviate, but may, to the extent necessary, adjust the specified matrix to the extent necessary. This also applies to the Czech Government Regulation No. 216 / 1992 Coll., as amended.
Reference to Articles 2 (2), 4 and 41 (1) and (2) of the Charter and Article 2 (4) of the Constitution in the interpretation of Article 31 In the Government's view, the Charter is self-effective and incorrect. These provisions are not related to the substance of the proposal by their content and purpose. Article 41 (1) of the Charter to which the appellants refer in their proposal only provides that constitutional rights under Article 31 A citizen of the Czech Republic can claim the Charter only within the limits of the laws governing the provision of health care. However, the word 'limits' does not apply here to the law itself, but to the right to claim.
On the contrary, the appellants overlook Articles 78 and 79 (3) of the Constitution, according to which the government and administrative authorities are entitled to issue implementing legislation within the limits of the law. It is therefore clear from the above that the right to free health care is not a fundamental human right. This conclusion is based on the fact that the Charter only ranks among the fundamental rights listed in its Title of the second section of the first and is explicitly indicated as such. Therefore, Article 4 (2) of the Charter cannot be invoked in this respect either.
The applicants wrongly believe that the Health Code is only binding on health insurance companies. The obligation of the insured person to pay part of the cost of health care is laid down by law, namely in § 11 (n) and (o) of the ČNR Act No. 550 / 1991 Coll., and not by statutory law.
The Constitutional Court also requested the shorthand records of the meetings of the Chamber of Deputies when amendments to Act No. 20 / 1966 Coll. and to the Act No. 550 / 1991 Coll.
For the submission of the application, the condition of active legitimacy under § 64 (1) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court is fulfilled as the application was lodged by 43 Members.
The statement by the President of the Chamber of Deputies of the Parliament of the Czech Republic dated 30 November 1995 confirms that the laws were approved by the necessary majority of legislators, signed by the relevant constitutional authorities and have been duly declared.
Article 31 Everyone has the right to health protection. Citizens are entitled, under public insurance, to free health care and medical supplies under the conditions laid down by law.
The Constitutional Court of the Czech Republic has already dealt with the nature of the various categories of fundamental rights and freedoms contained in the Charter in several findings (e.g. sp. zn.
In particular, in the Sp. zn. Pl. ÚS 32 / 95, it concluded that, directly by the Charter, the different arrangements for individual fundamental rights make it possible to argue that, while the concept of fundamental human rights is expressed by the fact that the limitation of any form of such rights can be "without further" only by law, the rights referred to in the title of the fourth Charter, entitled "Economic, Social and Cultural Rights," including Article 31, are expressly defined by the relevant law and can be invoked (within its limits).
For the overall assessment of the proposal, it is necessary, from a constitutional point of view, to examine whether Article 31 of the Charter in its entirety constitutes a fundamental right to free healthcare and public health care, or whether it is a constitutional standard which has a different regulatory content. References to mere semantic distinction in the Charter cannot stand in themselves, even if the title of the second title itself states only "Human Rights..." but in subtitle to Section One already includes "Fundamental Human Rights..." It is necessary to recognise the normative content under each term character. From this point of view, it is a fact that the Charter includes provisions on human rights which differ in terms of regulatory content.
First of all, it is human rights that emerge directly from human existence, and only this is the basis for defining their constitutional content and scope. These are values which contain fundamental rights for the preservation of the integrity of man and for ensuring his dignity, such as the right to life, the integrity of a person and personal freedom. Such rights are inalienable, inalienable, unbiased and irrevocable (Article 1 of the Charter). Their limits may be adjusted under the conditions laid down in the Charter and only by law (Article 4 (2) of the Charter). They're fundamental rights.
On the other hand, the human rights and freedoms contained in Title Four as "Economic, social and cultural rights' (semantically without the addition of" basic ') require further factors to be cohesive; does not act directly as the rights referred to above. This fact is quite evident in the Article 31 of the Second Charter. The right to free health care and medical supplies is limited to the scope of public insurance and is therefore linked to the return of insurance amounts. The whole of this title, the fourth in its total, depends on the economic and social level of the State and the associated standard of living. This right falls under the regime of Article 4 (1) of the Charter, whereby obligations may be imposed only on the basis of the law and within its limits and only with respect to fundamental human rights.
Standard content of the constitutional standard Article 31 The Charter is further restricted by Article 41 (1) of the Charter because it can only be invoked as rights within the limits of the laws implementing those provisions.
The question also needs to be asked whether the authorisation provided for in the provision of § 11 (4) of Act No. 20 / 1966 Coll., as amended and supplemented by which that law confers powers, allows those bodies to define healthcare for full or partial remuneration and / or the amount thereof and to determine whether the facts thus defined comply with the constitutional order of the Czech Republic.
As has already been stated above, citizens have the right to free health care and medical supplies under public insurance and under conditions specified by law. Therefore, if these conditions can only be regulated by law, it is imperative that the scope and the manner in which they are provided be defined by the same legislative regime. Other than legal regulation would be a violation of the Charter and therefore constitutional.
The definition of the extent of the amount of healthcare provided for full or partial remuneration cannot be allowed to be left to provisions other than statutory legislation. This would put the sphere of protection of fundamental rights and freedoms under the authority of an executive who is not entitled to such powers.
The proposed repeal of § 1 of the ČNR Act No. 550 / 1991 Coll., as amended by Acts No. 161 / 1993 Coll. and No. 59 / 1995 Coll., regulates both general health insurance and the conditions under which health care is provided under this Act. Article 2 (2) of the same Act states what includes care fully or partially covered by health insurance, but without precisely defining in paragraph 2 of the same section the limits of care fully or partially covered by health insurance. When determining the heading of care in these two planes, the provision cited refers to another sublegal legislation - Health Regulations issued by the Government of the Czech Republic Decree No. 216 / 1992 Coll., as amended by the Government Decree No. 50 / 1993 Coll. and the Government Decree No. 149 / 1994 Coll. It can therefore be concluded that the Act ČNR No. 550 / 1991 Coll., as amended, contains in fact a dual authorisation of the government and regulates the basic concept of health care by other ministerial regulations. This procedure is contrary to both the Charter and to the constitutional order of the Czech Republic, since it is only laws to establish the limits of the fundamental rights and freedoms of citizens.
The legal definition of the content and scope of the conditions and the way in which a citizen's right to free health care is granted is only legal. This obligation cannot be waived by the legislature by having an authority of authority in charge of the issue of legal standards of a lower legal force than that which determines the limits of those fundamental rights and freedoms. As already shown above, the existing health care arrangements are fully or partially paid duplicated by several legislation, the basic conditions, scope and limits of such care are clearly addressed by ministerial decrees (Decree of the Ministry of Health of the Czech Republic No. 467 / 1992 Coll., as amended, Decree of the Ministry of Health of the Czech Republic No. 426 / 1992 Coll., as amended by Decree No. 150 / 1994 Coll. and Health Regulations issued by Decree of the Government of the Czech Republic No. 216 / 1992 Coll., as amended).
Act No. 20 / 1966 Coll., as amended, in § 11 (2), (3), (4), and Act No. 550 / 1991 Coll., as amended, in § 2, define, both positively and negatively, the scope of this care, with its division into health care fully or partially covered by health insurance. Insurers under the age of 18 are fully covered by health care, even if its indications sound partially paid for care. Paragraph 2 (2) of the ČNR Act 550 / 1991 Coll., as amended, provides that the Health Code is mandatory for all health insurance companies. However, its binding obligation does not apply to all health insurance companies exclusively, as stated in the proposal, and there is therefore no reason to claim that it only obliges health insurance companies and not other legal and natural persons.
Where the appellant is opposed to the Charter in the fact that a second limiting factor, i.e. the amount of financial resources to cover health care, has been unconstitutionally established, this limiting factor is directly included in Article 31 of the Second Charter, where citizens' entitlement to free health care and medical supplies is bound by the constitutional requirement and the framework of public insurance. Like any insurance system, the public insurance system is limited by the amount of funds which is obtained on the basis of the obligation to pay the general health insurance premium under the Act No. 592 / 1992 Coll., as amended. However, this is not the same as the applicants' claim that the healthcare provided is conditional on the results of the economic activities of health insurance companies. The legal conditionality thus claimed is not given.
The applicants argue that the Czech Republic is obliged to respect the right of everyone to achieve the maximum achievable level of physical and mental health under Article 12 (1) of the International Covenant on Economic, Social and Cultural Rights, published under No 120 / 1976 Coll. It should be noted here that it is a postulate which, according to paragraph 2 of the article cited, consists of various measures, including improvement of all aspects of external living conditions and industrial hygiene. As regards health care itself, the provisions of paragraph 2 (d) of the cited Article 12 of the International Covenant, where States have undertaken to create conditions that would ensure all medical and care in the event of illness. This provision does not mention the validity of this medical assistance and care in the illness. The Czech Republic is therefore fully covered by the international pact set out in the terms and conditions.
On the basis of the above, the plenary of the Constitutional Court of the Czech Republic concluded that both the provisions of Section 11 (4) of Act No. 20 / 1966 Coll., as amended, and Sections 1, 2 (2) and (3), and 13 (3) and (5) of the Act No. 550 / 1991 Coll., as amended, and the implementing provisions set out in the draft group of Members contravened Articles 4 (1) and (2), Articles 31 and 41 of the Charter, as well as Article 2 (4) of the Constitution. Therefore, they had to be repealed. Since the replacement of the repealed provisions will require a new legislative regulation, which will be time-consuming in its scope and complexity, the enforceability of the finding was established on 1 April 1997.
President of the Constitutional Court of the Czech Republic:
JUDr. Kessler v. r.
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Regulation Information
| Citation | Findings of the Constitutional Court of the Czech Republic No. 206 / 1996 Coll., on the application for annulment of certain provisions of Act No. 20 / 1966 Coll., on the care of the people, as amended, and the Act of the Czech National Council No. 550 / 1991 Coll., on General Health Insurance, as amended, and the Health Regulations issued by the Government of the Czech Republic Decree No. 216 / 1992 Coll., as amended, on the reimbursement of medicines and medical devices, as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 01.08.1996 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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