The Constitutional Court found No 25 / 2023 Coll.
The Constitutional Court found of 13 December 2022 sp. zn.
Valid
25
FIND
The Constitutional Court
On behalf of the Republic
On 13 December 2022, the Constitutional Court decided under sp. zn.
as follows:
I. The proposal to repeal § 89e paragraph 1 of the sentence of the first Act No. 373 / 2011 Coll., on specific health services, as amended, is rejected.
II. The proposal to repeal § 89e paragraph 1 of the sentence of the second Act No. 373 / 2011 Coll., on specific health services, as amended, is rejected.
Reasons
Recital of the opening proposal
1. On 17 September 2021, the Regional Court in Mělník seeks the annulment of Paragraph 89e (1) of Act No 373 / 2011 Coll., on Specific Health Services, as amended ("Act No 373 / 2011 Coll. '). According to the appellant, the repeal of the proposed provision is contrary to Article 31 (2) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as" the Charter'), which guarantees citizens the right to free health care and medical supplies under the conditions laid down by the law by virtue of public insurance.
2. The applicant makes a proposal in connection with the proceedings in Case No 19 C 183 / 2021, which is the subject of a proposal by the Municipal Policyline Prague, based in Burné 78 / 12, Prague 1, to impose an obligation on the defendant R. H. to pay an amount of CZK 3,000 with accessories which represents the necessary costs of treatment of the defendant at the Bulovka Alcohol Detention Station, where he was provided with treatment and residence on 12 November 2019 because he threatened his health by lying drunk (2,56 promile alcohol in blood) on the street. The applicant refers to the finding of 20.5.2008 sp. zn. The appellant points out that the contested provision does not distinguish between whether a person is placed in a detention centre on the grounds that he is directly endangering himself or himself or because he is directly threatening another person, property or public policy. The appellant is convinced that, where a person is taken to a detention centre because he is threatening himself (i.e. not because he is threatening another person, property or public order), he is entitled to free health care in the light of Article 31 (2) of the Charter, otherwise they would be discriminated against against by persons who have also caused harm to themselves by their deliberate actions (e.g. providing health care in suicide attempts) or by an unhealthy way of life (e.g. the treatment of lung cancer in strong smokers, the treatment of obesity-related diseases, etc.) to whom free health care is provided.
3. The appellant states that historically, the purpose of the detention stations founded by MUDr. Jaroslav Skála in 1951 was to provide, inter alia, follow-up care for alcohol addicts or other addictive substances, this follow-up does not exist in today's detention stations. If the legislator is intended to provide medical care to a person who is intoxicated with alcohol or other addictive substance for the protection of that person from sudden illness, health care should, according to the applicant, be covered by public health insurance. Nevertheless, if the legislator considers that the person captured should be obliged to pay the treatment fee, the amount of the fee should be set by law and clear limits should be given to the charge obligation so that the person captured does not have a choking effect on the persons captured. Most of the clients of detention services are people who are socially weak, homeless, who are repeatedly placed here, and the current practice of charging them a disproportionately high fee only makes their social situation worse. It is also impossible to overlook the legislator's lax approach to this issue, when, for example, in the legal regulation of the doctor's and hospital visits, a limit of CZK 5,000 per year is set, and also from the regulatory fees, (under certain conditions), persons who have been granted assistance in material distress have been exempted, but there is no such adjustment for detention stations.
4. In conclusion, the appellant intends to consider why the persons concerned are not temporarily restricted to freedom in police cells, as is the case in other European countries (if the detention centres have the objective of ensuring the safety of other persons and property before the unwanted action of a person under the influence of addicts), when, according to the explanatory report to Act No. 65 / 2017 Coll., the health protection against the harmful effects of addictive substances, the cost of the person's stay in the police cell is, on average, CZK 750 (or CZK 1,600 if paid in cash on the place), in Prague CZK 3 000, and the management of the station, for example in Brno 700 CZK, in Plzeň 4 500 CZK, Olomouc. The stay of a person at the detention centre behind the legal amount does therefore appear to be a disproportionate burden on the persons concerned, as well as on health facilities and staff.
Observations of the parties and interveners on the content of the application
5. The Constitutional Court, pursuant to Article 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court), called upon the Chamber of Deputies and the Senate as parties to the proceedings and the Government and the Ombudsman as interveners to comment on the content of the application.
6. In its observations, the Chamber of Deputies stated that the contested provision was inserted into Act No. 373 / 2011 Coll. by amendment implemented by Act No. 65 / 2017 Coll. This bill was submitted to the Chamber of Deputies by the Government on 2 June 2016 and was distributed to Members on the same day as the House Press 828 / 0. The Chamber of Deputies of the Government's proposal that the bill be discussed in such a way as to give its consent at first reading, not to approve it and to order it to be discussed by the Health Committee as a committee to the guarantor, who discussed it on 18 October 2016. A number of amendments were tabled at the second reading on 25 October 2016, but none (as in the case of the first reading) related to the contested provision. The Guarantee Committee then discussed the amendments tabled on 24 November 2016 and submitted a resolution to the President of the Chamber of Deputies in which it adopted its opinions on the amendments. The third reading took place on 9 December 2016, when the Chamber of Deputies was given its assent to the draft law as amended by the amendments adopted, out of the total number of 163 Members registered, 118 votes in favour and 23 votes against. The bill was passed by the Chamber of Deputies on 20 December 2016 to the Senate, which approved it on 19 January 2017. The Act was delivered to the President of the Republic for signature on 31 January 2017, the President signed it and on 3 March 2017 the Act was published in the Collection of Laws under the number 65 / 2017 Coll. The President of the Chamber of Deputies considers that the law has been signed by the relevant constitutional authorities and is duly declared and leaves it to the Constitutional Court to examine the question of the inconstitutionality of the contested provision.
7. The Senate stated in its observations that it had discussed the legal outline at its 4th meeting at its 11th term of office on 19 January 2017. A broad discussion was held when discussing the draft law, but the contested provision was not the subject of it. After the debate, the Senate adopted Resolution No 80 which it approved when 45 of the 68 senators were voted in favour and 12 were opposed. The Senate also notes that it is up to the Constitutional Court to assess the constitutionality of the contested provision and to rule on the case.
8. Government submission of 8.2.2022 It informed the Constitutional Court that it was intervening, proposed the rejection of the proposal, authorised JUDr. MgA. Michal Solomon, Ph.D., Minister of Legislative Affairs and Chairman of the Legislative Council of the Government, in cooperation with the Minister for Health, to make comments on the proposal and the Minister for Health on its representation in the proceedings.
9. In its observations, the Government rejected the appellant's considerations of discrimination against people who threaten themselves directly under the influence of an addictive substance, compared to those who have harmed their own health by their own actions, as this argument lacks a more comprehensive dimension and sees a simplified view of the provision of health care. The Government points out that the detention service is primarily a sui generis health service, which is specific to its purpose, which is to protect persons who, as a result of the state of intoxication, are a temporary threat to other persons, property or public order or to themselves as they do not control their behaviour. It is therefore a health service that ensures a safe resolution of alcohol intoxication or other addictive substances, under the supervision of healthcare professionals. The provision of detention services is primarily the nature of supervision of the safe detoxification of an intoxicated person, the aspect of health care being closed, and the detention service is not intended to improve or maintain the health condition or alleviate the suffering that is common to other health services [and, inter alia, required in § 13 (1) of Act No. 48 / 1997 Coll., on public health insurance and on the modification and addition of certain related laws, as amended, ("Act No. 48 / 1997 Coll. ') to cover public health insurance services. On the other hand, if the health status of an intoxicated person excludes its location in a detention centre, i.e. as regards a person at risk of life failure of essential life functions, unconscious, with an untreated injury, with massive bleeding or a person showing signs of a disease which cannot be provided directly by a detention centre, it will be provided with appropriate health care at another designated health facility and this health care will be covered by public health insurance. Therefore, the need to provide a detention service is not triggered by a state of health recorded as for health services covered by public health insurance, but only by the state of immediate intoxication caused by the person himself, so that he ingested excessive alcohol or other addictive substances. Health care in terms of treatment of addiction to addictive substances is thus a step to which only medical personnel are invited to attend the detention centre.
10. The Government also does not agree with the appellant's view that the law does not set clear limits on the fee obligation for providing a detention service, which may cause a choking effect in extreme cases. The contested provision sets out a general framework for the amount of the fee, which is only the costs of the detention services provided, therefore the fee cannot be determined arbitrarily but only up to the amount of the costs actually incurred. Further details for determining the amount of compensation may be derived from the price regulation of health services provided by the price regulation of health services issued by the Ministry of Health pursuant to § 1 (6) (a) and (e) of Act No. 526 / 1990 Coll., on prices as amended, and pursuant to § 2a (1) of Act No. 265 / 1991 Coll., on the competence of the authorities of the Czech Republic in the field of prices, as amended, (in the case under examination, the Price Code No. 1 / 2019 / DZP issued in the Journal of the Ministry of Health No. 11 / 2018 of 21.12.2018, for year 2022, the Price Regulation No. 1 / 2022 / CAU issued by the Minister of Health No. 13 / 2021 on 30.11.2021). In addition, the amount of the detention centre operator's requested payment shall be subject to review by the general courts, e.g. on the basis of actions brought by the detention centre operator as a creditor of the person who was placed in the detention centre. Therefore, the general courts may examine the relevance of the costs claimed and, in individual cases, apply a correction of good manners and reduce the amount of the costs incurred recognised in its intention. In this context, the Government states that detention centres do not require all costs actually incurred, but only 10-40% of the costs of placing and staying a person in a detention centre (for this purpose, the Government provides the data obtained for the purposes of observations from certain detention centres). The Government notes that the contested provision also regulates the obligation of persons to pay transport costs to the detention centre, by cancelling them, they would be liable to the person who provided the transport (municipalities, counties) and would, overall, lead to uncertainty for the operators of the detention service regarding the reimbursement of the costs.
11. The Government also states that the reimbursement by the detention centre of the costs incurred by the person to whom the detention service has been provided is a traditional part of the law of the detention service when, in all the legislation already repealed since 1989, the obligation to cover the costs of detention has been imposed on the person in the detention centre in the event of the detection of alcohol or addictive substances. Similarly, Law No 65 / 2017 Coll. in § 24 imposes a regression of costs on persons who have been found to have alcohol or other addictive substances. If the appellant asks the question as to why people under the influence of addictive substances are not temporarily restricted to freedom in police cells, since the costs of being in a police cell are significantly lower, the Government rejects these considerations as impracticable, as the appellant goes into consideration, which by its nature falls within the scope of executive decision-making and legislation, virtually political elements of power, not courts. Moreover, it is a much more restrictive and hardcore solution to intoxicated persons, although it may appear to be economically advantageous from the appellant's point of view.
12. The Government concludes that the detention service is not intended to provide health care to persons located in a detention centre in order to improve or maintain their health, it merely provides for short-term supervision of a person who, due to temporary intoxication, does not control his behaviour. The contested provision cannot therefore intervene in the essential core of the right to health protection and health care, as it does not restrict or interfere with access to health care and treatment covered by public health insurance. The Government therefore has no doubts as to the constitutionality of the contested provision and proposes that the Constitutional Court reject the proposal.
13. The Ombudsman informed the Constitutional Court by letter dated 31.1.2022 that he did not intervene.
14. The Constitutional Court sent the observations of the parties and the intervener to the applicant in order to be able to make their views known. In reply, the appellant does not agree with the Government's arguments because, in its view, the detoxification itself is already an improvement in health. If a person is in such a condition that he or she cannot detoxify without the intervention of the health care staff and could therefore endanger himself, a check on the health care staff is needed. Otherwise, the question arises as to whether Article 89a of Law No 373 / 2011 Coll. is not contrary to Article 8 (1) and (2) in conjunction with Article 4 The Charter governing the fundamental right to personal freedom when, in most cases, gradual detoxification does not endanger a person's life and takes place without the contribution of medical staff. As regards the cost of the detention service provided, the appellant points out that although, according to the Government, detention stations normally require only a proportional part of the costs, it is always a decision of a particular establishment, no limit on that nature from the contested provision, which does not specify the costs of the detention service provided, does not result, the costs required are fundamentally different from the region. According to the appellant, the table attached is not complete, so the government is not even aware of the total cost of the detention centre. If the Government considers that the repeal of that provision would lead to uncertainty for the operators of the detention services, which would ultimately result in their burden, the appellant considers that, in the event of the annulment of the contested provision by the Constitutional Court, it is entirely within the legislature's jurisdiction to adopt other legal provisions and, where appropriate, to remove from the economic burden on detention centres, the appellant has pointed out in this case to the legal regulation of other States where a person in a drunk state is controlled on police cells.
The applicant's active legitimacy and management conditions
15. The Constitutional Court notes that it is competent to discuss an application which is admissible and also fulfils all the legal requirements in the rest.
16. The appellant is actively legitimised pursuant to § 64 (3) of the Law on the Constitutional Court and Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution ') to file a motion for the annulment of the sentence of the first contested legal provision which it is to apply immediately in its decision. However, it lacks active legitimacy to file an application for annulment of the second sentence, as the defendant in the main proceedings is not a minor.
Constitutional conformity of the legislative process
17. Pursuant to Article 68 (2) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the Constitutional Court, in addition to assessing the compliance of the contested provision with the constitutional order, ascertains whether the law has been adopted and issued within the limits of the Constitution laid down by competence and by the constitutional procedure.
18. Given that the appellant did not object to the fault of the legislative process or to the breach of the legislature's constitutional competence, it is not necessary to examine this issue further, taking into account, in addition to taking into account the observations submitted by the Chamber of Deputies and the Senate, the formal verification of the conduct of the legislative process from a publicly available source of information to https: / / www.psp.cz.
19. Following that finding, the Constitutional Court made an assessment of the content of the contested provision in view of its compliance with the constitutional order [Article 87 (1) (a) of the Constitution].
Abandonment of oral proceedings
20. In accordance with Article 44 of the Law on the Constitutional Court, the Constitutional Court has ruled on a case without oral hearing, since further clarification of the case could not be expected.
Derogation of the contested provision
21. Paragraph 89e (1) of Law No 373 / 2011 Coll. reads:
"(1) Where the presence of alcohol or other addictive substances is demonstrated, the provider of the detention service shall bear the costs of the detention service provided by the person to whom the detention service has been provided; the person shall also bear the costs of transport to the detention centre to the person who incurred the costs. Where the detention service has been provided to a minor who is not fully qualified, the costs shall be borne by his legal representative. ';
Constitutional and international legal bases
22. Article 31 of the Charter is the basic reference criterion for assessing the rationality of the proposal. 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. 'Such rights may be invoked within the meaning of Article 41 (1) of the Charter only within the limits of the laws implementing them. In assessing the proposal, it was therefore necessary to respect that the right to health care can only be exercised under the conditions laid down by law. It must also comply with Article 4 of the Charter, which authorises the legislator to restrict a particular fundamental right by law, while providing that such a restriction must apply equally to the same cases and must always conserve the substance and meaning of the restricted right or freedom.
23. The Constitutional Court has already established in the past [cf. the finding of 3 May 2017 sp. zn. Pl. ÚS 2 / 15 (N 69 / 85 SbNU 193; 185 / 2017 Coll.)] that the right to health protection affects 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 23.9.2008 sp. zn. Pl. ÚS 11 / 08 (N 155 / 50 SbNU 365) or the find of 27.9.2006 sp. zn. ÚS 51 / 06 (N 171 / 42 SbNU 471; 483 / 2006 Sb.)]. The right to health thus results in a number of positive obligations of the State (in particular of an organisational nature), whether they are preventive, hygienic, control or otherwise. The first positive commitment of the State is to adopt appropriate legislative arrangements which will anchor the right 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.
24. The positive obligations of the State arising from the first sentence of Article 31 of the Charter also include the provision of 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 most achievable level of physical and mental health." At European level, the right to health is guaranteed in particular by Article 11 of the European Social Charter (No 14 / 2000 Coll. s.).
25. 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.) places emphasis on equal access to health care, as Article 3 lays down the obligation of the Parties, "having regard to 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.
26. Already in the previous case-law of the Constitutional Court [e.g. the finding of 8 December 2015 sp. zn. Pl. ÚS 5 / 15 (N 204 / 79 SbNU 313; 15 / 2016 Coll.)], it is submitted that the health services business is characterised by extensive public law regulation which ensures that all persons have access to health care of a certain quality in accordance with Article 31 of the Charter. In order to achieve this objective, the law imposes on health service providers a number of obligations which would not, however, be fulfilled if the related costs were borne solely by those providers or individual patients as recipients. It would not be possible for these entities to consider the costs to be tolerable. It is for this reason that there is a public health insurance system in the Czech Republic, the participants of which are compulsory persons defined in § 2 (1) of Act No. 48 / 1997 Coll., which can be provided on the basis of it by the services covered by it. This system, taking into account the total number of insured persons and the amount of funds collected, has a dominant share in the expenditure on health services. The business of a substantial part of health service providers depends to a decisive extent on whether and to what extent they will be entitled to reimbursement under this system.
27. The Constitutional Court, in its judgment of 26.4.2022 sp. zn. Pl. ÚS 49 / 18 (171 / 2022 Coll.), expressed respect for the State's role in formulating a specific health policy, which may include the anchoring of certain priorities, motivational or sanctions elements. In this context, the Constitutional Court stated that its role is not, nor can it be, to question this function of the State, but, in the procedure for checking standards, to intervene in legislation as a result of the implementation of a specific health policy only if it finds a breach of a constitutional fundamental right or other constitutional cauties. It is therefore not entitled to correct this health policy solely because it does not consider it to be the best possible, for example. The ideal healthcare model cannot even exist in reality, and the task of the state is therefore far more prosaic: constantly pursue the highest standard of healthcare at a given time, space, within the budgetary possibilities of the state and the results of science and research.
Definition of the legal framework
28. Pursuant to Article 89a of Act No 373 / 2011 Coll. is an anti-alcoholic and antitoxic detention service provided by a person who, under the influence of alcohol or other addictive substances, does not control his behaviour and thus directly endangers himself or another person, property or public order (paragraph 1). The detention service shall be provided at an alcohol and toxic detention centre which is a medical establishment (paragraph 2). The detention service shall include an examination of the person in order to determine whether his or her location and residence in the detention centre, including the necessary care to prevent the risk to health directly related to acute intoxication (paragraph 3), are not excluded for the reasons set out in Paragraph 89b (2) (a). The capture service is provided by a region within its territory under separate jurisdiction (paragraph 4).
29. Paragraph 89b of Act No 373 / 2011 Coll. provides for the obligation of a person who, under the influence of alcohol or other addictive substances, does not control his behaviour and thereby directly endangers himself or another person, property or public order, and this threat cannot be averted otherwise, to undergo an examination and stay at a detention centre, including the necessary care to prevent the health of the acute intoxication, for a period of essential but less than 24 hours (paragraph 1). In doing so, a person at risk of life failure, unconscious, with untreated injury, massive bleeding, or a person showing signs of a disease immediately requiring care that cannot be provided at a detention centre, or a person under 15 years of age (paragraph 2) cannot be placed in a detention centre. A person may be placed in a detention centre only with the consent of a doctor designated by the detention service provider and subject to the conditions set out above (paragraph 3).
Meritorial review
30. The focus of the proposal is to claim that a person who is transferred to a detention centre because he is threatening himself (not because he is threatening another person, property or public order) is entitled to the free provision of services to the detention centre. From the point of view of constitutionality, the Constitutional Court cannot accept already the appellant itself submitted the division of persons referred to in § 89a (1) of Act No 373 / 2011 Coll. to a group of persons who are directly threatening themselves and a second group of persons who threaten another person, property or public order, in the sense that the first group of persons mentioned would be entitled to free health care under Article 31 of the Charter, while the second group of persons would not. It is not always possible to define the case at the same time when people are under the influence of alcohol or other addictive substances do not control their behaviour. For example, in a case pending by the appellant, the person placed in the detention centre threatened his health by lying drunk (2,56 per mile of alcohol in his blood) on the street - the appellant considers it essential that he did not endanger another person, property or public order. Undoubtedly, however, the very situation where such an intoxicated person is lying on the street is, by its very nature, a threat to public order, immediately, for example, from the point of view of bystanders. In addition, the randomness of the consequences of such a situation that develops over time (i.e. at the moment a person does not threaten anyone, then, for example, the property will be destroyed, and then again no one and nothing will be threatened by that person) is the reason why it is not possible in any objective way from the circle of persons referred to in § 89a of Law No 373 / 2011 Coll. to exclude persons who, unlike others, should not have to bear the costs of the detention service provider.
31. The applicant points to the finding of 20 May 2008 sp. zn. In the cited finding, the Constitutional Court was based on the conclusions of the finding of 23 April 2008, sp. zn. Pl. ÚS 2 / 08 (N 73 / 49 SbNU 85; 166 / 2008 Coll.), in which the Constitutional Court stated that "the extent to which the principle of responsibility and solidarity is manifested in the rule of law of that State also determines the nature of that State (e.g. as a social state). The degree of recognition of the principle of solidarity depends on the level of ethical understanding of coexistence in society, its culture, but also the sense of an individual for justice and belonging to others and sharing their fate at a certain time and place. Solidarity can be seen from an individual's perspective as internal or external. Internal solidarity is due to the emotional proximity to others, is spontaneous, applies mainly in the family and other partner communities. As a rule, the State does not intervene in this relationship or only in a very limited way (see family relations governed by the Family Act). External solidarity lacks this emotional closeness, and the individual's consent to its application is therefore more reluctant. It is, for example, solidarity between the rich and the poor, capable of being less able, healthy and ill. The state is very active in this area. In spite of the principle of solidarity, redistribution is carried out, i.e. a movement that transfers resources from one to the other - the needed."
32. It is clear from the above that the Constitutional Court had in mind solidarity towards persons who were disqualified in a certain way, in particular, in the concept of solidarity with the sick. In this context, however, it is not possible to see a person who, under the influence of alcohol or other addictive substances, has brought himself or another person, property or public order into a state where, under the influence of alcohol or other addictive substances, he is unable to control his behaviour, directly endangering himself or another person, property or public order, as the person needed, the sick person who needs to be provided free of charge by the detention centre.
33. As mentioned above, the right to free health care is not unlimited, but can only be implemented within the limits laid down by law. This law is Act No. 48 / 1997 Coll., which sets out the conditions under which health care is covered by public health insurance. According to Section 13 (1) of this Act, health insurance covers health services provided by insured persons in order to improve or maintain their health status or alleviate their suffering.
34. From the text of § 89a (3) of Act No. 373 / 2011 Coll. it is clear that, in addition to the stay in the detention centre, the detention service includes
an examination of a person in order to determine whether he or she is at risk of life failure, unconscious, with untreated injury, massive bleeding or a person showing signs of a disease which cannot be provided at a detention centre [placing such persons in a detention centre is excluded under § 89b (2) (a)]; and
The necessary care to prevent the risk to health directly related to acute intoxication.
35. However, although the purpose of the detention centre's activities is primarily to supervise the safe detoxification of a person, if the medical examination and the necessary services are directly linked to him, these are the activities of health services for which citizens are entitled under public health insurance under the terms of Article 31, sentence, of the second Charter, under the conditions laid down by the law. This is the Act No. 372 / 2011 Coll., on health services and the conditions for their provision (Health Services Act), supplemented by Act No. 65 / 2017 Coll., which classifies the anti-alcoholic and antitoxic detention service as health services [§ 2 (2) (i)], the recipient of which is referred to as "the patient ', specifying which of the calculated rights (§ 28 (3) the patient to whom the detention service is provided cannot apply to the health facility (§ 2 (2) (i))). The Constitutional Court thus does not agree with the Government's view that the need to provide a detention centre is not due to the state of the captured person, but only to the state of its current intoxication, which it itself has brought about by the ingestion of excessive quantities of alcohol or other addictive substances, and the location and residence of the intoxicated person in the detention centre is so specific that a priori cannot be described as health care under Article 31 of the Charter or as a health service within the meaning of Article 13 of Act No 48 / 1997 Coll.
36. The Constitutional Court therefore draws on the need to interpret the contested provision in such a way that the "cost of the detention service provided 'paid by its recipients is only the costs associated with its stay in the detention centre (accommodation, catering, hygiene, etc.) and must be separated from the costs associated with the medical care provided (medical examination, medical supplies, etc.) which are covered by public health insurance.
37. Contrary to previous legislation (Act No. 379 / 2005 Coll., on measures to protect against damage caused by tobacco products, alcohol and other addictive substances and amending related laws), placing in a detention centre is not sufficient for decisions of the authorities or persons referred to in § 21 of Act No. 65 / 2017 Coll. (i.e. persons authorised to call for an indicative or expert medical examination), but the doctor designated by the detention centre must give his consent. Therefore, a medical examination must be carried out before the decision to place in the detention centre to assess whether the person at risk of life failure is unconscious, with untreated injury, massive bleeding or a person showing signs of a disease which cannot be provided in the detention centre (in which case the person is provided with medical care outside the detention centre in the relevant medical establishment) when transferring the person to the detention centre. It is only after this examination that it is possible to decide on a further stay of the person concerned at the detention centre, or it may be possible to decide that a further stay at the detention centre is excluded from such a person.
38. Although the detention service is not intended to ensure the improvement or maintenance of their health status and provides only the necessary care "to prevent the threat to health directly related to acute intoxication" (Section 89a (3) of Act No 373 / 2011 Coll.), its component linked to the medical examination of the free health care scheme under the second sentence of Article 31 of the Charter. It should be pointed out at this point again that the transport costs (to whom these costs were incurred) and the stay (to the provider of the detention service) are paid by the person who received the detention service only if the presence of alcohol or other addictive substances is demonstrated. Otherwise, those costs are borne by the person who asked the person for a professional examination within the meaning of Section 21 of Act No. 65 / 2017 Coll. The criterion applicable to the reimbursement of these costs is therefore the only one, namely the presence of alcohol, to such an extent that, as a result, the person concerned is not in control of his behaviour and thus directly endangers himself or another person, property or public policy, and must be provided with a detention service.
39. If the appellant asks why, in this situation, people under the influence of addictive substances are not restricted to freedom in police cells, it cannot be said that Article 8 of the Charter guarantees personal freedom, which may be limited, for example, by imposing obligations to submit to constitutional health care, i.e. without its consent, only by law (paragraph 6), if this is necessary for the security of the state, the maintenance of public order, the protection of health or the protection of the rights and freedoms of others and in designated territories also for the protection of nature. Even in the case of placing a person in a detention centre, it is a restriction on personal freedom, when the obligation to submit to the provision of that health service is, under § 89b (1) of Act No 373 / 2011 Coll. where the conditions laid down by law for its placing in a detention centre are fulfilled. It is therefore a kind of involuntary provision of a health service (which is not reported to the court in respect of its duration, since it must not exceed 24 hours) to a person who may not be able to express his or her informed consent or his / her informed opposition to the provision of such a health service, as the law foresees. Similar health protection restrictions are foreseen by the Act in a number of other cases, e.g. § 64 (a) of Act No. 258 / 2000 Coll., on the Protection of Public Health and on the amendment of certain related laws, as amended by Act No. 267 / 2015 Coll., imposes on individuals who have become ill with an infectious disease or are suspected of being infected, subject to isolation, administration of specific immunological preparations or antiinfectious agents, necessary laboratory testing, medical examination and quarantine measures.
40. However, the detention of persons and their placing in a police cell shall be subject to another mechanism and may only be granted in the case of persons accused or suspected of a criminal offence and only in the cases provided for in the law, the detainee shall, moreover, be released or surrendered within 48 hours at the latest to a court which shall decide on the detention or release of the person (Article 8 (3) of the Charter). The proposed procedure would thus foresee fundamental legislative changes, the initiative of which, as stated by the Government in its observations, belongs to the political components of power, not to the courts.
41. The Constitutional Court was not able to attest to the appellant's claim that the amount of the fee should be set by law and should be cemented, since persons placed in a detention centre are often socially weak and disproportionately high charges have an effect on these persons.
42. The cost of the detention service is determined, inter alia, by the Ministry of Health's Price Regulation of Health Services issued on the basis of Section 10 of Act No. 526 / 1990 Coll., on prices, as amended, and published in the Ministry of Health Bulletin (e.g. for 2022, the Ministry of Health Communication No. 471 of 7.12.2021 on the issue of the Price Code 1 / 2022 / CAU on the regulation of the prices of the health services provided, the setting of maximum prices of health services provided by dental practitioners paid by public health insurance and specific health performance), in which are detailed in the individual items of performance [e.g. laboratory examination of biological material in the presence of drugs (targeted immunochemical seizures and pharmaceuticals + administrative tasks) 784 CZK, laboratory examination of alcohol in the blood and) Widmark test 112 CZK, b) a specific determination of the new chromatography. specific determination of ethanol by gas chromatography) 693 CZK, clinical examination of a person suspected of drinking alcohol associated with the collection of venous blood 364 CZK, clinical examination of a person suspected of ingesting addictive, psychotropic and other substances except alcohol (targeted by a doctor) 788 CZK, etc.].
43. If the appellant considers that the total detention centres charged the costs associated with the location in the detention centre were too high, the Government's argument that the level of detention centres of the requested payments in each particular case is subject to judicial review may be upheld. Even in the case pending by the appellant (when the costs of the detention service of CZK 3,000 were charged to the defendant), nothing prevents the court from reducing the amount requested by the action if it concludes that those costs were charged unduly or were not properly demonstrated by the applicant. The Court of First Instance may also assess the applicant's claim in the light of the compliance of the costs claimed with good manners.
44. Beyond that, however, it can be added that it is a question of whether it would be desirable, from the point of view of preventing and protecting against the consumption of alcohol and other narcotic substances, to remove persons placed in a detention centre from the costs incurred in their stay at the detention centre. The costs which these persons are obliged to pay on the basis of the repeal of the proposed provision are certainly not of a penalty nature, but are undoubtedly a warning to these persons that the state of intoxication they have created and which was so intense that the law combines with its consequences the need to place a person in a detention centre, will have a negative effect on them, inter alia, on the reimbursement of the costs thus incurred. Thus, the argument that the fee paid will make the social situation of these persons worse cannot be sustained from this point of view.
Conclusion
45. For the reasons set out above, the Constitutional Court has concluded that the sentence of the first contested provision is not, by its essence, capable of intervening in the essential core of the right to health protection and health care, as enshrined in Article 31 of the Charter, since it does not restrict or distort access to health care and treatment covered by public health insurance. The deficiencies were not found by the Constitutional Court or by the way in which this part of the contested provision sets out the method of reimbursement of the costs of the detention service provided. The sentence of the second contested provision was not directly applicable in the main proceedings as the defendant was not a minor and was therefore not actively legitimised by the appellant for the application for annulment.
46. The Constitutional Court decided, on the basis of the above, pursuant to § 70 (2) of the Law on the Constitutional Court to reject the application for annulment of § 89e (1) of the First Law No. 373 / 2011 Coll. (operative part I). In the remainder, in the part against the sentence of the second provision, he rejected this proposal under Paragraph 43 (1) (c) of the Law on the Constitutional Court, as amended by Act No 77 / 1998 Coll., as filed by someone manifestly unauthorized (operative part II).
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found No. 25 / 2023 Coll., on the application for annulment of § 89e paragraph 1 of Act No. 373 / 2011 Coll., on Specific Health Services, as amended |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 31.01.2023 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
Public Contracts 1
čp. 1220 - dodání a montáž společného satelitního rozvodu pro 24 bytů
Město Vodňany
Vilém Sosna
134 280 CZK
15.03.2023
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